Scottish Government: Ultra Vires Expenditure
 - Question

Lord Foulkes of Cumnock: To ask His Majesty’s Government, further to the answer by Lord Offord of Garvel on 7 December 2022 (HL Deb col 171), whether they have received a report from the Cabinet Secretary on ultra vires expenditure by the Scottish Government; and what steps they are taking in respect of this matter.

Lord Offord of Garvel: I am sure that the noble Lord, Lord Foulkes, will agree with me that the people of Scotland want their two Governments to work and to concentrate all their attention and resources on the issues that matter most to them. That is why this Government are focused on tackling the cost of living by halving inflation and growing our economy. I hope the new First Minister will have the same ambitions and work constructively with us to deliver for the people of Scotland, with the Scottish Government focusing on devolved matters and allowing the UK Government to focus on reserved matters.

Lord Foulkes of Cumnock: My Lords, I do agree with the Minister, but does the Minister agree with me that there is outrage in Scotland at the Scottish Government spending an increasing amount of money on reserved areas? I know he shares that concern, but he and the Secretary of State are the only ones who can do anything about it. Could he and the Secretary of State consider some arrangement for monitoring the expenditure of the Scottish Government, to make sure that all of it is spent on devolved areas, which are in great need of expenditure?

Lord Offord of Garvel: Well, I know that the noble Lord is dogmatic on this point, and we agree on many things. He is absolutely right to say that people in Scotland are absolutely focused on this matter as well. I would like to report that, since we last had this discussion, there have been, as there always have, discussions between the Cabinet Secretary and the Scottish Government’s Permanent Secretary. Therefore, issues and concerns have been raised to ensure the independence of the Civil Service. The noble Lord will be pleased to note, for example, that since he last raised this issue, the Scottish Government have reallocated £20 million they had set aside for an independence referendum to their fuel insecurity fund, which is a move I think we both welcome. Furthermore, the leading candidate in the SNP leadership election has just indicated that there will be a pause to any further independence papers—on the grounds that nobody reads them. Lastly, I can confirm that the Secretary of State for Scotland has met with the Foreign Secretary to discuss the Scottish Government’s activities  internationally. Both are very clear that any overseas engagements by the Scottish Government should not encroach on reserved matters, and this will be kept under close review.

Lord Forsyth of Drumlean: My Lords, is my noble friend not concerned that the police investigation into the financial conduct of the Scottish National Party, in particular the money raised for a referendum, is taking such a long time?

Lord Offord of Garvel: My noble friend is correct to point out this recent development, and the police have now indicated that they are taking evidence from witnesses under caution. That procedure needs to be allowed to run its course. The wheels of justice grind slowly, but hopefully they grind fine.

Lord Bruce of Bennachie: My Lords, it may be reasonable for the Scottish Government to have overseas representations to promote trade, investment and tourism, but is it not worth reminding them and indeed the wider Scottish public that the UK has an extensive network of high commissions, embassies and consulates which do exactly that for all regions of the UK, including Scotland, and all the citizens of the UK? Are the Government satisfied that, when Scottish Ministers are abroad and they avail themselves of UK diplomatic facilities, they do not do so to promote separatism and the disintegration of the United Kingdom, a role for which they have no legitimacy?

Lord Offord of Garvel: Yes, foreign affairs are a reserved matter under Schedule 5 to the Scotland Act 1998 and are therefore the sole responsibility of the UK Government and UK Parliament. However, the Scottish Government and other devolved Administrations are entitled to conduct some international activity in support of their own devolved responsibilities, such as promotion of cultural exchanges and events, which they often do within the embassy network we have throughout the world. The Scotland Act is clear that foreign affairs are outside the competence of the Scottish Government and therefore they cannot and should not encroach into matters such as separatism or the constitution. We are aware that they have been doing that in recent times. As I just reported to the noble Lord, Lord Foulkes, the Secretary of State for Scotland has met with the Foreign Secretary and that will be very closely monitored in future.

Lord Watts: My Lords, the Scottish Government are obsessed with a referendum because they do not want to fight an election on their past record in public service.

Lord Offord of Garvel: What is emerging from this very interesting leadership debate—what the newspapers are now calling civil war in the Scottish National Party—is that the obsession with independence has got in the way of their running a competent government to focus on the priorities of the people of Scotland. It might be worth noting that they have been in power for 15 years and during the first seven, First Minister Alex Salmond did manage to move the vote from 30% to 45%, but the second First Minister has actually gone backwards. What is now being debated   in this leadership campaign is the need to focus on the priorities of the people of Scotland and get away from this independence obsession.

Lord Howell of Guildford: My Lords, I do not quite know how this Question got on to Scottish foreign policy. Will my noble friend bear in mind that although foreign policy is a reserved matter and not devolved, the Scottish international footprint is colossal and its influence very great? I think there is some justification in the feeling that Scotland has not in the past had adequate consultation and co-operation with foreign policy-making here in London. Will he therefore remind his colleagues in the Foreign, Commonwealth and Development Office that they should take full account of the power of the Scottish imprint and its influence on the international scene in promoting the United Kingdom generally?

Lord Offord of Garvel: I thank my noble friend for pointing that out. The Scottish diaspora is large and international, but international engagement is mostly focused on trade and is done by the Department for Business and Trade. Trade is a reserved matter, but it is also legitimate for Scottish companies to promote their activities internationally, along with the cultural aspect we have talked about. They can legitimately do that within the machinery of the UK Government, and we must allow them to continue to do so. We are just making sure that we do not have a separatist agenda being promoted to countries that I have to remind that the United Kingdom is still united.

Lord Reid of Cardowan: My Lords, the Scottish Administration are embarking on courses of action that are not only clearly ultra vires, but which have grievous implications for the rest of the United Kingdom. Indeed, one of them has already been questioned and opposed by the Prime Minister, quite correctly, but they continue to do so. Has the Minister had a chance to look at this daft bottle deposit scheme? Given that all three candidates for the SNP leadership, whatever we may think of them, have criticised that scheme—indeed, Kate Forbes has described its effect on the British retail industry as “carnage”—are the Government intending to allow that to go through or are they waiting for the SNP to ditch yet another policy?

Lord Offord of Garvel: This is one of a number of Bills coming down the track that we need to monitor quite carefully. We have already had the Gender Recognition Reform (Scotland) Bill, in respect of which we have pressed the Section 35 button—for the first time in 437 Bills—and now we have the bottle deposit scheme. The UK Government received notification of a formal exemption to the United Kingdom Internal Market Act on 6 March, whereas producers were given a deadline of 1 March to sign up for the scheme. That feels to me like building a house first and then applying for planning permission. What we need to do is emphasise the importance of the United Kingdom Internal Market Act. Whether you like Brexit or not, we were previously in a single market of 28 European states and we are now in a single market of the four countries of the UK. What all our businesses say to us is that they do not recognise borders, and given that  60% of Scotland’s trade is with England, we do not want different terms of trade in Scotland and in England. There are a number of things coming down the track in respect of which we have to remind ourselves that certain things are done better as one United Kingdom.

Lord Wigley: My Lords, far be it from me to pass judgment on the expenditure patterns of the Scottish Government; the Scottish electorate are quite capable of doing that, as they have done in the past. On the question of overseas trade, is there not a case for every UK embassy having a nominated person who can deal with requests or agendas from Scotland, Wales or Northern Ireland, so that the devolved Governments know exactly how they can work in co-operation with those embassies?

Lord Offord of Garvel: That does exist, and in the Scottish case it is through SDI—Scottish Development International. That system has been working very well over the 26 years of devolution; only in the past two years have we had this encroachment and a different attitude from the Scottish Government. That is what noble Lords are referring to today.

Baroness Smith of Basildon: My Lords, I thank the Minister for his thoughtful answers. I take issue with one, however. He described my noble friend Lord Foulkes as “dogmatic”, but we on this side regard him as a cuddly pragmatist.
May I take the Minister back to my noble friend’s question? He said in response that the Government will monitor legislation—he later mentioned the GRA and the bottle deposit scheme—but my noble friend asked the Government to monitor expenditure to ensure at an early stage that it is not ultra vires. The Minister did not really address that point. Will he do so?

Lord Offord of Garvel: The devolution settlement was put in place in this House long before I arrived, and the machinery of government was set up in the devolution Act. It does not allow the UK Government to look over the shoulder of the Scottish Government regarding money sent from the Treasury to Scotland. The scrutiny exists in the Scottish Parliament, and Members of the Scottish Parliament rightly scrutinise the Scottish Government and hold them to account. The Auditor General for Scotland, the Accounts Commission and Audit Scotland work together to deliver public audits in Scotland, and the National Audit Office provides independent assurance that public money is spent properly and provides value, and it scrutinises public spending for Parliament. These are the checks and balances in place. If the noble Baroness would like to go further, we would need to bring another Bill to this House.

Carbon Budgets: Methane Flaring
 - Question

Baroness Sheehan: To ask His Majesty’s Government what assessment they have made of the impact of methane flaring on meeting the United Kingdom’s carbon budgets; and what plans they have to ban this practice.

Lord Callanan: My Lords, the Government recognise that eliminating routine methane flaring is a priority. North Sea flaring has halved in the past four years. We have committed to make every effort to ensure that routine flaring from oil and gas fields ends as soon as possible, ahead of the World Bank’s zero routine flaring by 2030 target. Methane emissions are fully accounted for in the UK’s carbon budgets, and the oil and gas sector is on track to deliver against this target.

Baroness Sheehan: My Lords, the figures the Minister has quoted are hotly disputed by the respected journal Energy & Environmental Science. However:
“With natural gas prices at historic highs, gas flaring is an extraordinary waste of economic value … alongside its negative impacts on climate change and human health.”
Those are not my words but the words of the IEA’s recent technology deep dive report into flaring. Why do the Government not just stop this historic madness, follow the Skidmore review recommendation and ban flaring and venting, other than in an emergency situation, as Norway did in 1972?

Lord Callanan: These are complicated technological and economic matters. If it were as simple as the noble Baroness makes out, we would do it, but we are working to do it as quickly as possible. The figures that I quoted are from a press release from the North Sea Transition Authority that was issued today—the authority must have seen the noble Baroness’s Question. Flaring is down by 50% since 2018. We must not get this out of proportion; of the UK’s methane emissions, only 1.6% are from the oil and gas sector, compared with the likes of the 49% that come from agriculture.

Baroness McIntosh of Pickering: My Lords, does my noble friend the Minister accept that there is a huge amount of methane leakage from landfill sites? How do the Government propose to deal with the methane escaping from those sources?

Lord Callanan: My noble friend makes a good point. Some 30% of our emissions are from the waste sector, which is one of the sectors where we are doing our best to try to reduce emissions because the gas is valuable and can be used, and indeed it is trapped on some sites. We have a system of supporting anaerobic digesters to deal with the waste; they can produce green gas that is then fed into the gas main.

Baroness Bennett of Manor Castle: My Lords, returning to oil and gas methane emissions, the last time we discussed this at Oral Questions on 22 February I raised the same point that the noble Baroness, Lady Sheehan did, that the figures are heavily disputed and academic research suggests that methane releases are five times higher than the UK’s official figures. The Minister said then that the Government would
“make sure that the information and published figures are as accurate as possible”.—[Official Report, 22/2/23; col. 1648.]
What progress has been made since then on ensuring the accuracy and reliability of figures for methane releases from the oil and gas industry?

Lord Callanan: I have checked figures with officials from the last time the noble Baroness asked me that question, and I am confident in the information that I have been given and the UK statistics. The noble Baroness shakes her head, but the figures are probably more reliable than some of her scientists.

Lord Kamall: Can my noble friend the Minister tell us what the Government are doing to encourage more use of landfill gas for domestic and commercial energy?

Lord Callanan: My noble friend makes a good point, and I touched on it in an earlier answer. We want to try to trap as much of this gas as possible because it is a valuable resource. As I mentioned, the green gas support scheme is a system that uses a gas levy to support anaerobic digesters across the country to take some of the waste food and organic matter that can be turned into useful gas that is fed into the gas main.

Baroness Blake of Leeds: My Lords, methane flaring accounts for approximately 145 billion cubic metres of gas per year globally, contributing to the overall methane emissions that cause 25% of global heating today. We can dispute the studies; indeed, I shall reference the study in the journal Science that came out last week which found that methane flaring is responsible for five times more methane entering the atmosphere than previously thought. I am quite taken aback by the complacency here. Does it not at least warrant further consideration if studies are disputing the evidence that the Minister has cited today? Bearing that in mind, and given the worries about the recent surge that have been highlighted, what progress is being made on farming and landfill, as has been mentioned? I do not think we have had the detail. When can we expect the Government to produce the latest, much-promised plan to achieve all targets and net zero?

Lord Callanan: The noble Baroness asked a number of questions there. We can argue about the figures but we can all agree that it is something that we want to eliminate as quickly as possible. We have a target to get rid of all flaring emissions by 2030, as I mentioned in earlier answers, but let us not get this out of proportion. These are 1.6% of our emissions, which we should eliminate as quickly as possible, but, as the noble Baroness mentioned, the bigger sectors to tackle are agriculture and waste, as other noble Lords have mentioned.

Lord Sharkey: My Lords, in the last four months the sky over Hampshire and the Isle of Wight has been lit up twice by huge emergency flaring from the Fawley refinery. What release of methane was involved in these incidents? What steps are being taken to prevent more such episodes?

Lord Callanan: I thank the noble Lord for that question. I am not familiar with that incident, but I will speak to officials when I get back to the department.

Lord Wallace of Saltaire: My Lords, will the Minister recommend to us how we should pronounce the acronym for his new department?

Lord Callanan: The noble Lord makes a very good point. The finest minds in the Civil Service have been devoted to deciding the acronym for the new department. “Deznez” seems to be the favourite, though I should say that my Secretary of State rightly points out that no one has any idea what all these acronyms stand for so we should use its full title, which is the Department for Energy Security and Net Zero.

Lord Fox: In answer to my noble friend’s Question, the Minister said that there are reasons why this is technically difficult. It would help noble Lords if the Minister could explain what those technical difficulties are. I can understand it when new wells are being tested, but this is established production over the long term. What exactly are the technical difficulties?

Lord Callanan: I am happy to arrange a briefing with officials for the noble Lord if he would like, but the technical difficulties are, first, technological, in that it requires a lot of new infrastructure and pipework to be installed, and some of the facilities that flare are oil platforms that do not have facilities to pipe the gas to shore. Secondly, there are huge economic costs associated with it; obviously, some of the infrastructure goes back to the 1970s.

Lord Geddes: My Lords, would this problem not be greatly reduced if we put more emphasis on tidal energy?

Lord Callanan: My noble friend is dogged in his determination to get tidal on the agenda. I agree with him that we need more renewable energy, and we have allocated a number of CfD contracts to different forms of tidal energy.

Lord Stirrup: My Lords, on a slightly different tack, has the Minister’s department made any assessment yet, or will it do so, of the claims we have recently seen in the press about new technology for carbon capture and storage at sea? Is that likely to be a game-changer or has it been overhyped?

Lord Callanan: The noble and gallant Lord deserves a longer answer than I have time for. CCUS is emerging technology. We have a huge programme of support and will be making announcements shortly about the track 1 cluster, to use the jargon, of some of the schemes that will be supported. There are a number of innovative schemes around the UK that deserve our backing.

Lord Blunkett: My Lords, will the Minister confirm that historically the capture of dangerous gases of this sort has been by our peat bogs? The protection of peat, particularly in the Pennine area, is crucial to this. What steps will the new department take to ensure that we can continue to protect those areas?

Lord Callanan: The short answer is it is not the responsibility of DESNZ but of Defra in terms of environmental protection, but I will pass on the noble Lord’s comments.

Baroness Bennett of Manor Castle: My Lords, the Minister might like to take this opportunity to withdraw the slur that he made in his answer to me against scientists from the Energy Institute at Colorado State University, the department of civil and environmental engineering at Princeton University, and the Princeton School of Public and International Affairs, whose work was published in the journal Energy & Environmental Science. Does the Minister agree that that is a reputable source?

Lord Callanan: People are always quoting various scientists at me, and for one opinion there are others. I am confident in the figures that the UK uses for our emissions.

Theatre Tax Relief
 - Question

Lord Bassam of Brighton: To ask His Majesty’s Government what plans they have to maintain Theatre Tax Relief at the higher rate of 45 per cent/50 per cent for the next three years; and what assessment they have made on the impact of that relief in facilitating growth and investment in the sector.

Baroness Penn: My Lords, at the Autumn Budget 2021, the Government temporarily increased the headline rates of theatre tax relief to 45% and 50% in recognition of the impact of the Covid-19 pandemic on the sector. The Government acknowledge the concerns of the industry about the upcoming taper of the rates in April, and we will keep this matter under review.

Lord Bassam of Brighton: My Lords, when I tabled this Question, I hoped that I would be helping the noble Lord, Lord Parkinson, in his annual debate with the Treasury over tax levels. The theatre tax sector generates nearly £2 billion extra value added to local economies. Does the Minister agree that reducing theatre tax relief at this stage would be premature and harm the sector’s recovery? What other forms of support does she envisage providing, given that audiences to theatres have recovered to only 73% of pre-Covid levels?

Baroness Penn: My Lords, I should remind noble Lords that the level of tax relief will remain enhanced from April at an elevated rate of 30% or 35%. I know that my noble friend Lord Parkinson and the Secretary of State have been engaging with the sector carefully to hear about its ongoing challenges and, as the noble Lord has said, they have fed that back across Whitehall and to the Treasury.

Lord Vaizey of Didcot: My Lords, the theatre tax relief has been a resounding success, and the higher rate has resulted in one US producer increasing their investment in UK theatre by 250%. We all have a duty to make my noble friend Lord Parkinson as happy as possible, so will the Minister acknowledge that administering the tax relief costs a great deal of money? Will she either provide a special grant to the  British Film Institute, which administers the film, TV and audio-visual tax credit, or introduce a levy on the film tax credit—a very small levy—to cover the institute’s significantly increased cost in administering it so well? She will make our noble friend extremely happy if she agrees to that.

Baroness Penn: My Lords, there are two different tax credit systems, as I understand it: one for film and audio-visual and the other for theatres. Both have huge value to the sector and also to the sector’s contribution to our economy. We are committed to ensuring that they continue to be able to contribute in that way. We want to make the system as simple to operate as possible, and all suggestions for doing that are gratefully received.

Baroness Bull: My Lords, the creative future report from the Communications and Digital Committee of your Lordships’ House, on which I sat until recently, called on the Government to benchmark the UK’s creative industry tax-relief schemes against those of other countries that are now offering similar schemes but with more attractive rates. This includes a new theatre production tax credit from New York, which is a direct competitor. What assessment have the Government made of the threat that this kind of international competition presents to the UK’s continued pre-eminence in the creative industries?

Baroness Penn: The noble Baroness is right that we should think about our international competitiveness. Tax reliefs for the cultural sector are not actually that common, but she has identified one in New York. We have looked at our scheme against that and, overall, our scheme is more generous than the New York one. We are confident that it provides great support for our theatres, not just within the UK but as international competitors as well.

Lord Razzall: My Lords, given that the Minister has mentioned it, may I extend the Question to cover the Government’s attempt to modify HETV tax relief for all audio-visual productions? I appreciate that this is out for consultation, but does she agree that it would be a mistake to increase the minimum expenditure threshold for HETV relief to above the current £1 million per hour, as to do so would threaten the production of many low-budget domestic British dramas, comedies and documentaries? Does she acknowledge that, on this basis, even “Happy Valley” might never have been made? Will she either confirm that the Government have no intention of making this change or, if they are proposing to do so, agree to have an impact assessment before the decision is made?

Baroness Penn: My Lords, as the noble Lord has noted, that proposal is out for consultation. As part of a package of reforms, we are looking at reviewing the £1 million per hour minimum expenditure threshold and considering whether it should be increased to reflect current production costs. However, I assure the noble Lord that, in considering these different reforms, the Government remain committed to ensuring that the final package of reforms best serves the need of our audio-visual industry.

Baroness McIntosh of Hudnall: My noble friend Lord Bassam referred in his question to changes in audience behaviour since the pandemic, which has had a very serious impact on the ability of performing arts in particular to plan confidently. Audiences appear to respond to strong, novel programming, which is where the highest initial risk tends to lie. Has the Treasury made any assessment of the potential loss to the Treasury if performing arts organisations and others start to decrease their investment, thereby damaging the potential they have to draw audiences, which would then impact Treasury revenue?

Baroness Penn: My Lords, the points that the noble Baroness makes are entirely those that we would want to consider in looking at the issue. She is absolutely right about the value and the costs when it comes to the production of these shows, which is why the tax relief is focused there. She is also right that they can bring huge economic benefit, including through exports, attracting visitors to the UK and productions going on the road. Those are the kinds of things that the DCMS and the Treasury will consider when looking at the tax relief.

Earl of Clancarty: My Lords, there are concerns similar to those of the theatres in the visual arts sector concerning the museums and galleries exhibition tax relief. The Treasury and the noble Lord, Lord Parkinson, will be aware of this, having received the letter signed by many museums’ and galleries’ organisations which asks for that relief to be extended. It has been not just helpful, but vital to the sector, not only for the larger museums, but smaller galleries and emerging artists outside London. If the Government want to see this sector grow across the whole country, they should seriously consider maintaining this tax relief, and at the current level.

Baroness Penn: The noble Lord is right that the theatre tax relief is not the only cultural tax relief that we have. The Covid support that was put in place to extend the levels of that relief cover those areas as well. I know that my noble friend Lord Parkinson has been listening very carefully to the representations made by that sector and passing them on to the Treasury.

Lord Lansley: My Lords, my noble friend will be aware of the value in present circumstances of tax measures that can boost growth and enhance tax receipts. In that respect, will she and her Treasury colleagues look positively at representations from the video games industry on the extension of the video games tax relief, which is estimated to enhance growth to the extent that tax receipts would rise by more than £200 million a year?

Baroness Penn: My Lords, the Government keep all taxes and tax reliefs under review. My noble friend is right about the value that the video games industry brings to the UK. The Chancellor has identified our creative industries as a key driver to our future growth, which is what we have heard in the range of different questions from noble Lords today.

Lord Watts: My Lords, the creative industries are one of the most successful industries in the UK. Is there not a lesson in that the more support the Government give them, the more successful they are? Do we need a cross-party approach to this, so that all departments contribute in the way that they do, for example, in Ireland?

Baroness Penn: I absolutely agree with the noble Lord about the contribution made by the creative industries to our economy and society. That is why the Government put such world-leading support into them. I am sure that we welcome the cross-party approach of Labour supporting the Government in this area.

Lord Forsyth of Drumlean: My Lords, is not my noble friend much encouraged by the great consensus that we have seen this morning that cutting taxes results in increased investment and growth?

Baroness Penn: I am greatly encouraged by the support that this House has offered to the creative industries sector. When we look at tax rates, we need to look at individual sectors and the individual response that those sectors have. I can reassure my noble friend that we are committed to having a competitive tax regime that stimulates growth and attracts businesses to the UK.

Baroness Fox of Buckley: My Lords, it is the case that theatres and all artistic venues need artists. One group that has some support from taxpayers is the BBC. Will the Minister condemn the decision by the BBC to cut the BBC Singers, which is such a tragedy for the arts world? I would like to support them here, just before the end.

Baroness Penn: My Lords, I believe that is one for the BBC to comment on, rather than me.

Iran: Toxic Chemical Agents
 - Question

Lord Alton of Liverpool: To ask His Majesty’s Government what assessment they have made of reports that toxic chemical agents have been used against schoolgirls by the authorities in Iran.

Lord Ahmad of Wimbledon: My Lords, the deeply sinister reports of toxic agents being used against schoolgirls in Iran have shocked the world. While we cannot yet draw conclusions on who is responsible, one thing is clear: the Iranian authorities must carry out a fair, transparent and rigorous investigation. It is essential that girls are able to fully exercise their right to education without fear. The United Kingdom considers this a very serious matter and will continue to follow developments very closely.

Lord Alton of Liverpool: My Lords, I am very grateful to the Minister for the way in which he expressed that reply. Can he share with the House his assessment of reports that these wicked attacks are a retaliation following the protests led by women and girls that have convulsed Iran since the death, while in the custody of Iran’s morality police, of 22 year-old Mahsa Amini; and his assessment of the threat on a state-run website that the poisoning would spread if girls’ schools are not closed down? Is it plausible that such systematic and widespread attacks have taken place without the knowledge of the state intelligence agencies and the IRGC? Will the Minister be taking his public demand that there should be an urgent and transparent investigation to the United Nations Human Rights Council, so that those responsible for what he has said are sinister, wicked attacks are brought to justice?

Lord Ahmad of Wimbledon: My Lords, I agree with the noble Lord and he will be aware that I also called this out on 3 March. I have literally just flown in from the United Nations this morning, where Iran and the whole issue of girls and their education, and women’s empowerment, was discussed in a very global sense at the Commission on the Status of Women. I can assure him that, in my meetings with key bilateral partners as well as within the wider context of the UN, these matters have been raised. The noble Lord raises the issue of the Human Rights Council and we are of course following what further steps we can take with key partners there. As to who is responsible, there is a lot of speculation out there but it is clear that, since November, 800 to 900 girls have been impacted. This is very sinister and it is down to the Iranian authorities to investigate it properly, in the interests of their own citizens.

Baroness Manzoor: My Lords, what is happening in Iran to many girls and women is of course sinister and shocking. But looking at education in Iran further down the line, schools for girls are being closed. There is separate education for boys and girls, with girls being totally marginalised and taught only arts and humanities. Will my noble friend the Minister ensure that these longer-term issues, as well as the shocking violence taking place against girls and women, are addressed? These other issues should also be addressed so that we do not have another generation of women who are deeply affected by a lack of education in Iran.

Lord Ahmad of Wimbledon: My Lords, I totally agree with my noble friend; there is nothing to justify that kind of suppression of girls’ education anywhere in the world, be it in Iran or Afghanistan, which we have talked about. I can share with her that, having spoken specifically with the OIC and the Islamic countries, there is a plan for a UN-sponsored conference within the region immediately after Ramadan. It is likely to be in Kuwait and will focus on the very issue of women and girls’ rights within the context of Islam, so that Islam does not suppress them but promotes them.

Baroness Kennedy of The Shaws: My Lords, I too just returned from the UN at the beginning of last week. One issue being raised at the UN now, in its Human Rights Council, is not the genocide convention,  although that is being raised a lot too, but the apartheid convention and whether its definitions of race should be expanded to include gender. All the same components of not allowing women to have access to civil society, participation in politics or education can certainly be seen in Afghanistan, and should be called out for happening there because apartheid is a crime—a crime against humanity. The inclusion of gender in that definition is about addressing the serious ways in which women’s non-participation is increasing in such places. We now see that in Iran too. Is the Minister raising the issue of expanding apartheid to include the question of gender?

Lord Ahmad of Wimbledon: My Lords, what I can say to the noble Baroness on the issue of gender is that, within the context of UN discussions at the moment, there is a very regressive prevailing attitude among certain countries on reopening things which have already been determined, including definitions of gender. This is now causing great concern. We often talk about like-minded countries but there are un-like-minded like-minded countries, if I can phrase it that way, leading the charge so we must remain firm on this. I assure the noble Baroness of my good offices, and those of the FCDO and all colleagues, in ensuring that we keep girls’ and women’s rights very much at the forefront of our international policy.

Bishop of Exeter: My Lords, the production and utilisation of chemical warfare in civil and international conflicts is explicitly prohibited under the Chemical Weapons Convention, to which Iran is a signatory and a participating member. Will His Majesty’s Government commit to using this existing framework to advocate for the creation of a fact-finding mission by the Organisation for the Prohibition of Chemical Weapons?

Lord Ahmad of Wimbledon: The right reverend Prelate raises a very important point: the proliferation of nuclear weapons and the enrichment of uranium towards having them is very much at the heart of our approach. He may know that, yesterday, the E3 made a statement directly on the visit of the IAEA’s DG, Mr Grossi, who was in Iran. What is really worrying at the moment is that the levels of enrichment which now prevail in Iran have, according to the latest reports in the region, reached about 83.7%. This is fast approaching the very level which would allow for nuclear weapons to be produced. We call again on Iran publicly, as we did yesterday, to desist from this practice because not doing so is creating a precarious situation—not just in the region but globally.

Baroness Helic: My Lords, in a debate in the Moses Room on 23 February, the Minister promised to take back the concerns of your Lordships’ House regarding the closure of the BBC Persian radio service. Given the importance of the BBC in reporting this appalling attack on schoolgirls, can he tell the House what response he received from the Foreign Secretary and the Chancellor on ensuring that the decision to shut down BBC Persian is reversed?

Lord Ahmad of Wimbledon: My Lords, my noble friend is correct. I asked for a specific update and I know that we are looking at the languages which the FCDO supports directly. Persian is not one of them but I have certainly taken back the very points raised in those debates and I hope to update my noble friend in the very near future.

Lord Purvis of Tweed: My Lords, the FCDO women’s strategy rightly highlights the persecution of women in Iran. Home Office figures for 2022 state that 1,218 vulnerable and persecuted women from Iran claimed asylum within the UK, of whom 232 are under 29 and are not eligible for the resettlement scheme. Under the Government’s Bill, they would now be voided and deported. Will the Minister give me and them the assurance that they will not be deported back to Iran? If they are not deported back to Iran, then where? Will he please explain to an Iranian woman who is seeking asylum within the UK what the safe and legal route is, since currently there is not one?

Lord Ahmad of Wimbledon: My Lords, I believe that my right honourable friend the Prime Minister has spoken about the importance of safe and legal routes but I assure the noble Lord that the situation in Iran also prompts the importance of the United Kingdom particularly continuing to support those women and girls who seek refuge here. We have a long-standing tradition in this regard and I believe it is important that that continues.

Lord Collins of Highbury: My Lords, I know that the Minister will not speculate but, just to pick up the point made by the noble Lord, Lord Alton, there is increasing evidence of the state’s involvement in this, particularly by the IRGC. When are we going to hear from the Government about that organisation being proscribed?

Lord Ahmad of Wimbledon: My Lords, we have imposed further sanctions on individuals within the IRGC and the organisation itself has been sanctioned. I have heard consistently across the House and from all Benches about the importance that is attached to proscription, but the noble Lord is quite correct; at this moment, I cannot speculate from the Dispatch Box about what may happen next.

Strikes (Minimum Service Levels) Bill
 - Committee (1st Day)

Relevant documents: 10th Report from the Joint Committee on Human Rights, 27th Report from the Delegated Powers Committee, 14th Report from the Constitution Committee
Clause 1 agreed.

  
The Schedule: Minimum service levels for certain strikes

Amendment 1

Lord Collins of Highbury: Moved by Lord Collins of Highbury
1: The Schedule, page 3, line 15, leave out “even if” and insert “unless”  Member’s explanatory statementThe amendment seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.

Lord Collins of Highbury: My Lords, I am sure that the Minister will feel a bit like me, having done two days of Committee on the retained EU law Bill and now going straight into this. I hope the Committee will forgive me if I stray into areas where my brain could still be stuck on that Bill. Anyway, let us have a go. The difficulty with this Bill—it is similar to the one we were considering for five days—is that it is a skeleton Bill. It is very difficult to understand the policy objectives and purposes, and what the meaning of these things will be. We do not really have a clear impact assessment of it.
I start with my amendment in this group about the lack of reports we have received. Certainly, no reports or impact assessments were available when the Commons considered these issues. We have now had them, and our own Delegated Powers and Regulatory Reform Committee gave a very clear statement about the Bill. However, I want to focus on the Joint Committee on Human Rights report referenced in my amendment. I have never seen a report condemn a Bill in such a way. The Committee found that
“the Government has not adequately made the case that this Bill meets the UK’s human rights obligations”.
It highlighted—we will address this in other amendments—the lack of clarity around
“The requirement that trade unions take ‘reasonable steps’ to ensure their members comply with a work notice”,
which may fall foul of Article 11 of the European Convention on Human Rights. At Second Reading, the Minister constantly said that we are meeting our international obligations, but the Joint Committee on Human Rights certainly does not agree.
The fact that we are uncertain about what these things mean leads me to the question of how the Bill will impact existing disputes. Not only do we have a poor definition of the sectors which may be engaged and such broad categories that we do not know exactly what will be in it, we also do not understand what minimum service levels are, how they will be applied and how they will be applied in those categories. Absolutely nothing is clear. It is all going to be reliant on statutory instruments—secondary legislation.
Again, a Committee of this House—I raised this, along with the noble Lord, Lord Hodgson, last night—has been very clear; the problem with skeleton Bills and secondary legislation is that you end up with proposals being put forward that this House cannot give proper consideration to. We cannot amend, change or improve them. None of those things applies here or down the other end, so we are presented with a fait accompli to reject or accept. That is an extremely difficult situation to be in.
Particularly in Amendment 1, we are probing when the measures in the Bill will apply and how. I particularly want to hear very clearly from the Minister if this will be applicable to disputes that have already commenced. If it will—if the mandate has been established, and a trade union has complied with every legal requirement in balloting and notices and the mandate was  democratically arrived at—is the Bill going to impose an additional requirement on trade unions? Will they have to say to their members, “You may have balloted, met all these statutory requirements, and have a legal right to strike”, but the Government will insist now that the union tells them they must work? Can that possibly be right at all? We will go through all this as we move on, but what a situation to be in. How can that be justified? It will lead to people not fully understanding their rights and responsibilities. We will look at this in other groups, but this could impact areas in which we already have minimum levels of service and agreements to ensure that things are protected. This potentially undermines those, especially if there is confusion about the categories of employees within a sector mentioned in the Bill.
I come back to the point about retrospection. Are we suggesting that someone who has complied with all the legislative requirements entering a dispute can suddenly be faced midway with the understanding that their protection from dismissal is lost? If the Minister comes back and says, “The Bill is not about dismissal or sacking people”—I will probe strongly on that—what will it result in? Will it result in huge penalties against unions? If the union loses its immunity under the Bill on a dispute which has started and met all the statutory legal requirements, is the union going to be vulnerable to further attacks? It is not acceptable. If there are to be situations like that, I dread to think what would happen. People cannot be forced to undertake something where they started knowing their full legal rights, but the situation changed.
On the Joint Committee on Human Rights report, there are a number of areas I could address but I will not at this stage. I will pick them up in other groups, but it is very difficult to not stray into areas beyond the terms of the specific amendment, because nothing is properly defined. Committee is an opportunity to interrogate, probe and have conversations. I hope we will be able to do that on this group because so much is unclear. I beg to move.

Lord Fox: My Lords, the first two amendments in this group look, sequentially, either backwards or forwards. I agree with the noble Lord, Lord Collins, and his colleague the noble Baroness, Lady O’Grady, that the Bill should not apply retroactively. I am sure we agree that it should not apply at all, but the arguments set out by the noble Lord, Lord Collins, about the unfairness of retroactivity are clear, and probing the Government’s intentions for how the Bill would be applied is very helpful.
I suspect that the motivation of the amendment of the noble Lord, Lord Balfe, is that it will not apply at all. He is playing what I would call the Micawber amendment, in that he plans to punt its commencement some time into the future and wait to see whether something turns up. I look forward to his speech shortly.
I will focus on the third of these amendments. Although the noble Lord, Lord Collins, said that he will come back to the Joint Committee on Human Rights report later, we can perhaps set things up with  the Minister’s answers to my questions, which will enable him to further probe the Government’s view on this. Rather cleverly, the third amendment presaged a report—I do not know whether the proposers knew one was coming—because surely riding over the horizon is the JCHR’s report on the Bill. I trust that the Minister has read it all; there is quite a lot, and it is all pretty scathing about the Bill.
The JCHR is clear that the legislation risks contravening the UK’s responsibilities under international human rights laws and conventions to which the UK is a signatory. This includes Article 11 of the European Convention on Human Rights, which establishes the right to assembly and association, and the right to strike, as established by the International Labour Organization conventions. Although Governments are permitted to impose restrictions on the application of these laws and conventions, the Joint Committee said, this must be justified, proportionate and necessary. Overall, it finds that that justification is not made within the Bill.
In particular, I will highlight the following details. In the view of the JCHR,
“the Government has not adequately made the case that this Bill meets the UK’s human rights obligations”.
One of the reasons why it has formed this view is that:
“The lack of any limits on the level of service that the Secretary of State may impose by regulations risks a failure to comply with the Article 11 requirement”—
in the ECHR—
“of being ‘in accordance with the law’ as the Bill arguably currently allows for potentially arbitrary interferences with the right to strike.”
The report continues, even more persuasively in my view:
“We do not consider that the Government has given clear and compelling reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned, again undermining the argument that there is a ‘pressing social need’ for this legislation.”
Finally, the committee notes what many of your Lordships highlighted at Second Reading—namely, that there is very little transparency over human rights, equalities or the economic impact of the Bill. The Government have only recently published their impact assessment, which the Regulatory Policy Committee rated not fit for purpose, as we noted. Consultation on minimum service levels has just begun with some of the sectors. Instead, the committee says that the Government are rushing the Bill through Parliament, with very little time for scrutiny. This, coupled with the skeletal nature of the Bill—to which the noble Lord, Lord Collins, made reference—make parliamentary scrutiny extremely difficult. It is very hard to scrutinise something that is coming later, through secondary legislation, as the committee noted. MPs and Peers cannot be sure what they are being asked to vote for—the Joint Committee said that, as did your Lordships, in the round, at Second Reading. There is much in the committee’s excellent report on the Bill that I commend to the Committee.
The Prime Minister made it clear that he does not want the UK to withdraw from the ECHR. To my knowledge, he has not voiced any opinion on the ILO, but I do not think that withdrawing from that is on the  cards either. So it is not sufficient for the Minister to downplay this report or, frankly, to disparage the convention. It is incumbent on the Government Front Bench to address and answer the serious questions set out in the JCHR report.

Baroness Noakes: My Lords, I will make comments on two aspects. First, it is not the case that the Bill is retrospective in effect because, by definition, it applies only to future strike actions. The fact that the strike action might have been initiated before the Bill is completely irrelevant. It applies to protect people who are suffering from the lack of services in the future, so it is not retrospective.

Lord Collins of Highbury: I do not understand why it is “completely irrelevant”. Is the noble Baroness saying it is irrelevant if people participate in a ballot, there is a democratic decision, a dispute is held, the mandate is proper, everyone knows their legal rights and responsibilities, and the unions have had to go through huge hoops to get there?

Baroness Noakes: I am. The need for the Bill has been established by a lot of rather irresponsible action by some of the unions which has completely disrupted the lives of ordinary citizens. Remember that the Bill is designed to protect the lives of ordinary citizens and to balance their rights against those that the noble Lord referred to. It will apply only to future strike action by workers—that is the most important feature.
Secondly, I will address the Joint Committee on Human Rights. Both noble Lords who have spoken struggled to paint this as a very damning report. It is not: it does not say that the Bill does not comply with international obligations but instead says things like it is “difficult to establish” or that it “arguably” contains insufficient provision. Although I have great respect for the Joint Committee on Human Rights, and particularly its chairman, who is an acknowledged expert in this area in her own right, it is not the arbiter on whether bits of legislation comply with human rights law. At the end of the day, it is for the courts to decide. The Government believe that it is within our international obligations, and there are good arguments for that. We should not take the view of one committee of Parliament as being determinative, even if that committee were clear and unambiguous in its findings, which it was not.

Lord Cashman: My Lords—

Baroness Chakrabarti: My Lords, I wonder whether I could speak, because I will respond directly to the noble Baroness opposite. To be clear, I support all the amendments in this group, but I will tailor my comments in direct response.
Essentially, there were two comments about the Joint Committee. The first was that its language was too moderate to be taken seriously. I disagree in principle with the proposition that the fact that the report was not “damning”, as opposed to concerned or critical, should somehow undermine the value of that commentary. The Joint Committee is to be praised for its constructive tone in matters of industrial relations—if only everyone did the same.
Crucially, on the issue of who the arbiter is, I think it a bit rich for people who spend a lot of time undermining the legitimacy of the courts, of “unelected judges who do not speak for the people or have democratic legitimacy”, whether here or in the international court in Strasbourg, and who do so in the context of one Bill—perhaps about refugees—then to come along and criticise and undermine an essential element of our domestic human rights settlement which is a parliamentary committee of both Houses that has more of an element of “democratic legitimacy” and was always intended when the Human Rights Act was passed. Yes, of course, the courts will be the final arbiter, but before we get to that extreme situation—it should be rare in a modern democracy that the Executive and the courts have to be in a head-to-head collision—there is a role for Parliament. There is a role for Ministers when they make a Section 19 statement under the Human Rights Act. Ministers on this occasion have taken the view that they can make a Section 19(1)(a) statement; in other words, they believe that this measure complies. Following on from that executive statement—that is what a ministerial statement is—it is a key part of our settlement, and rather a constructive one, that a parliamentary committee of both Houses has a look at ministerial reasoning for it. I do not need to put it higher than this: on this occasion, the Joint Committee, with an element of democratic legitimacy—because it is not just Peers but to a large extent Members of the other place—has taken the view that the case has not been made by the Government. The noble Baroness did not address the specifics of that.
I will try to crystallise what the noble Lord, Lord Fox, identified in the criticism of the Joint Committee. Essentially, when one interferes with qualified rights such as freedom of association—it is a qualified right; it is not torture that we are talking about here; this is freedom of expression and freedom of association—one needs to comply with a convention that was drafted by Conservative lawyers after the Second World War. I will keep saying that because it is an important part of political history in this country and the world. To comply with Article 11, interference or potential interference—not violation, but interference—with freedom of association needs to be necessary and proportionate and in accordance with the law. “In accordance with the law” means not arbitrary—to be clear and foreseeable enough when that interference is set out.
The Joint Committee asks reasonable questions of noble Lords and Ministers opposite. First, how is this measure proportionate, when there are more proportionate means such as negotiation, of establishing what minimum service levels should be? Secondly, how is it proportionate to introduce this element of retroaction in relation to people who have balloted on the understanding of the law as it currently is? Thirdly and crucially, how is it not arbitrary to put the meat, the potatoes and the dessert—the whole meal—in regulations and not in the Bill? Those are incredibly pertinent, reasonable and legitimate questions for the Joint Committee of Parliament—not the courts, because we are not in that extreme situation yet—to ask. That is the point of Parliament; we do not want to set a collision course  between our Government and His Majesty’s judges, let alone an international court. That is why I address those comments to the noble Baroness opposite.
More generally, I am more concerned by the hour, let alone by the day, about this Government’s approach to human rights. On this occasion and with this Bill, they have taken the view that the Bill complies. I disagree, but I am sure that we will shortly hear from the Minister the rationale about how in his view this Bill—not just the policy behind it but the way the policy is executed—complies with those requirements of “proportionate interference” and accessibility in terms of non-arbitrary measures that are in accordance with the law. It is legitimate that we ask the Minister to do that.
However, I worry that what we are reading in the newspapers, seeing in legislation and hearing in ministerial rhetoric every day is a deliberate electoral strategy of turning people against one another and setting the Government and the putative electoral machine on a confected collision course with, one minute, the domestic courts and, the next, the Strasbourg court—sometimes, it is the unelected Peers; sometimes, apparently now, it is even the Joint Committee on Human Rights. With this Bill, of course, it is the trade unions. I remind all noble Lords, whether my noble friends or I like it or not, that a lot of members of trade unions did not vote Labour in recent elections; by definition, many of them must have voted Conservative. Is this kind of deliberate class war a good political move, let alone an ethical move, on the part of noble Lords opposite? I see the noble Baroness laughing.

Lord Collins of Highbury: It is not funny.

Baroness Chakrabarti: I do not find this kind of deliberate strife—a confected division of our very troubled country—amusing at all, and I look forward if not to the noble Baroness’s response then to that of the Minister in due course.

Lord Henley: My Lords, I sit on the Joint Committee on Human Rights and therefore my name is attached to that report. We have heard various descriptions of the report coming from the Opposition Front Bench, the Liberal Democrat Front Bench, my noble friend Lady Noakes and the noble Baroness, Lady Chakrabarti. As the noble Baroness, Lady Chakrabarti, put it, the report asks some questions and raises doubts about whether the Bill is compliant. We had only a very short time in which to look at the Bill, because it is being brought through rather quickly. We had one evidence-taking session, and we sent out a call for evidence, to which there were a number of responses. I cannot say that our examination of the Bill was as in depth as it would have been for any other Bill. Nevertheless, I can say that the descriptions of the report from the Opposition Front Bench and the Liberal Democrat Front Bench are not quite the same as what I have heard from my noble friend Lady Noakes or even from the noble Baroness, Lady Chakrabarti, who, quite rightly, set out that, although we raised doubts, we did not give that damning report that was  the impression one got from the speeches from the Opposition Front Bench and the Liberal Democrat Front Bench.
I would have signed up to the report only if I was happy with it. Although the report raised some doubts, it did not say, “This is not compliant”; it made it clear that we thought that there were questions to be answered. Those questions will, quite rightly, be answered by the Government when my noble friend the Minister comes to respond today and, no doubt, at later stages. There was not time either for my noble friend or whoever is the responsible Minister to come to the committee and give evidence; no doubt they would like to have done so, and no doubt there will be a possibility of their doing that in future.
I just want to make it clear that there are different ways of looking at the report. What my noble friend Lady Noakes, the noble Baroness, Lady Chakrabarti, and I are saying is probably a better picture of it than what we heard from the Opposition Front Bench.

Lord Collins of Highbury: I certainly would not want to mislead the Committee. What I was trying to say at the beginning is that the problem with the Bill is that we do not know what it is going to lead to. As the report states—my noble friend raised this point—
“the requirement for trade unions to take ‘reasonable steps’ to ensure their members comply with a work notice issued by an employer does not provide the clarity needed to guarantee that trade unions and employees will know when this duty has been met and when it has not … As drafted, the provision … may fall foul of the requirements of Article 11”.
I shall keep coming back to this point: we simply do not know how our rights will be impacted, because it is not clear or foreseeable.
I think that it is an excellent report; I was not overegging it at all. There will be a lot more questions on this as we move through Committee. My other point is that not only are we not clear about what is foreseeable, but we are now hearing from the noble Baroness, Lady Noakes, that this legislation would apply even though a union has complied with all the current statutory legal obligations.
I am glad that the noble Lord, Lord Forsyth, is here, because I remember the 1980s as he does, including the legislation that had to be passed. There are many hoops, so somebody who starts at the beginning of an official, legally recognised dispute, will then be told half way through, as a consequence of this potential legislation, that they do not have the right to go on strike. Worse still, there will be a legal obligation on the union to tell them that they cannot go on strike. So the union which organised the ballot for them to strike and has met all the statutory requirements is suddenly being told that they have to take reasonable steps. What does that mean? Does it mean that they instruct the person not to go on strike? I hope that the noble Lord can clarify that for me.

Lord Henley: Like my noble friend Lord Forsyth, I also remember the 1980s. Probably one of the problems of this House is that we can all remember the 1980s slightly too well—possibly excluding one or two other younger Members of the House.
I am not accusing the noble Lord of misleading the House. These things are always just a question of tone. Certainly, with the great many reports that come to the Joint Committee on Human Rights, it is matter of getting the tone right, so that we can all come to an agreement. On that committee, and I am sure it is true for a great many other committees, we always try to get agreement from every member; that helps to give greater effect to the report. Interpreting the tone of the report is important. That point was the only reason I wanted to make a contribution; I was not planning to speak on the Bill. I will probably stay here for much of the rest of the debate to make sure I can contribute as appropriate; I will ensure that I have a copy of the report in front of me.

Baroness Fox of Buckley: My Lords, I am surprised that anybody has been able to check whether the Bill is compliant with human rights legislation, because there is nothing in the Bill. I try very hard to read the legislation that comes before us, but I cannot always do it because I have tomes and, as I am not in a party, I have no one to outsource it to. However, I did not have much trouble with this Bill, because there is nothing in it—and, in a way, that is the problem. So although I am not keen on human rights legislation, I disagree with the noble Baroness, Lady Chakrabarti, that this is some big conspiracy against human rights legislation. But I cannot tell what I think about the Bill in relation to that point.
If we forget the human rights aspect, the problem with the skeletal nature of the Bill is that employment rights are important to millions of people in this country, and they were long and hard fought for. If there is a risk of their being taken away, we are not all just going to sit here and say, “Well, we will trust you, even though you haven’t written it in the Bill”.
I have so many questions. At Second Reading, the Minister stressed that a process of consultation would be required before regulations on maintaining
“minimum service levels are introduced”.—[Official Report, 21/2/23; col. 1640.]
But with whom are they consulting? The fact is that we are discussing minimum services and we do not know what the minimum services are. Is it 90% or 50% of services? Will it be different for different services? It is inevitable that this will make it open to conspiratorial questions; people will ask, “What are they up to?”
All the time, I just keep thinking that the consequence of this is that overstretched public services will have to assess these minimum services, which I think will waste endless amounts of their time when we have a crisis of public services. Named individuals may be persuaded to vote for strike action—it is perfectly within their right to persuade them, if there is an argument as to whether they will go on strike or not—and decide to go on strike, which is quite a big decision to make, but then they are named by their employer as somebody who has to strike-break and cross a picket line. If you refuse to do that, you jeopardise everybody else’s employment rights and get the union sued, so you can understand that concern. As an aside, strike-breaking and crossing picket lines is a point of principle that some of us we will not defy; it is a big deal for us. I wanted to make that one bit of clarification.
I just do not know why we need the Bill, and there is nothing in the Bill to tell me why we need the Bill, because—and I think this relates to some of the points made in the Opposition Front Bench’s opening speech—is it not the case that many of the sectors mentioned in the Bill already have their own minimum service requirements? They are often voluntary, but sometimes not. Only in 2019, in the Queen’s Speech, we were told that we needed a Bill to ensure that people could depend on their transport networks; they were trying to legislate on minimum service in transport. At the time, I wondered why they were picking on transport workers, but the point was that they felt it was so important that they had to mention transport. However, now they are just throwing in everybody else. So it has changed from having any kind of democratic requirement; that would imply that this is because more people have gone on strike, but the Bill comes across as a Bill to stop strikes, and, surely, that is one of its problems.
We have the Fire and Rescue Services Act 2004, which allows the Secretary of State to provide and to maintain services and facilities in fire and rescue situations. That was given to him, and, while I did not agree with it, he has that legislation. In the education sector, there are various statutory duties on schools regarding the safeguarding and supervision of children and so on.
Do not get me wrong, I do not agree with all the strikes that have been called recently—I am not in those unions, and I might argue against them—but that is not the point; the point is that we are talking about fundamental rights. They are not human rights; they are long-established employment rights, and the Bill does not tell us which ones are being taken away. It will inevitably cast the Government as people who are indifferent to workers’ rights. I have defended the Government on the Retained EU Law Bill when people have said that they are using it to smash workers’ rights; in response, I have said, “Don’t be so conspiratorial”. I am not helped in defending the Government on that when they bring this Bill forward which is about attacking workers’ rights.

Baroness Chakrabarti: I will respond, briefly, to the noble Baroness, and I am grateful to her for her ability to disagree well. First, I point out that many of the fundamental employment rights that she holds so dear are actually human rights, and they are set out in international conventions and the covenants of the Churchill settlement. If she does not like the word “human”, she does not have to use it, but these rights are, as a matter of law, international human rights.
Secondly, again, I know that she does not like our human rights settlement or the Human Rights Act, but in our public law in this country, not just under the Human Rights Act, one of the main benefits to the Government of putting the policy neat in primary legislation and not leaving it all to regulations is that regulations—to respond again to the noble Baroness, Lady Noakes—may be struck down in the courts in ways which primary legislation may not.

Lord Cashman: My Lords, I speak in support of Amendments 1 and 51 in the names of my noble friends Lord Collins of Highbury and Lady O’Grady.  It seems to me that the amendments in this group are perfectly reasonable. Amendment 1
“seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.”
I cannot think of anything more reasonable.
The Bill causes me deep concern, on the basis not only of human rights but of the fundamental rights enshrined in British law. For example, under the Bill,
“Workers could … be sacked for taking strike action that has been agreed in a democratic ballot. If a person specified in their employer’s work notice continues to take strike action despite being required to work during the strike, they will lose their protection from automatic unfair dismissal. This currently applies for first 12 weeks of a strike.”
This is a gross infringement of individual freedoms.
In listening to the earlier intervention by the noble Lord, Lord Henley, I thought he made a rather good case for Amendment 51—that is, that the amendment requires the publication of a report from the Joint Committee on Human Rights before the Act can come into operation. Again, that is perfectly reasonable, engaging the organs of Parliament in how we go forward.
As I said at Second Reading, I have deep concerns, not only as a trade unionist of more than 57 years but as someone who has fought on the basis of equal rights. The Bill impacts on equalities. It is worth recalling that BME people make up 15% of the workforce, yet the figure is 24% in health and 21% in transport. So there is an impact on the BME community when it decides whether it wants to take democratic action to defend its pay, terms and conditions—indeed, its very standard of living.
This Bill is unfair, and these amendments seek to address that. It is undemocratic and I believe that it is in breach of our international legal obligations. The Bill would also allow Ministers, as has already been said, by regulation to impose minimum service levels on services within six sectors, and it would do it by statutory instrument, with Parliament’s engagement in that process greatly reduced. Many details of how the legislation would work are still unknown. As a result—this will be said time and again throughout Committee, I am sure—the Bill has been the subject of significant criticism by the House of Lords Delegated Powers and Regulatory Reform Committee and, as has been said, the Joint Committee on Human Rights and the Government’s Regulatory Policy Committee.
For the avoidance of doubt, I repeat that the Joint Committee on Human Rights found that the Government have
“not adequately made the case”
that the Bill meets the UK’s human rights obligations. It highlighted the lack of clarity on the requirement that unions take “reasonable steps” to ensure that their members comply with a work notice issued by an employer, and “may fall foul” of Article 11 of the European Convention on Human Rights.
I could go on, but I think I have said enough. However, I assure noble Lords that I shall pursue this further in Committee during the discussion of this very dangerous and undemocratic Bill.

Lord Balfe: My Lords, the noble Baroness, Lady Fox, hit the nail on the head: this is a completely unnecessary Bill. It tells us nothing and no one is demanding it, apart from the Government, who seem somehow a bit obsessed with problems which I am not sure exist.
I begin by declaring my entries in the register. I can actually top the noble Lord, Lord Cashman, as I have been a trade union member for 63 years consistently, and I still am today—and very proud of it. I am not also completely dominated by our need to respect international law. Having been in Brussels and Strasbourg, I have seen how sclerotic it often is. On the migrants Bill, for instance, there may well be a need to stand up to some of the international law provisions. But that is not the case here—there is no demand for this Bill at all.
I am not, as the noble Lord, Lord Fox, implied, trying to be Mr Micawber. The Bill is so defective that the Government will need a couple of years to sort out what it means. All the different industries and professions mentioned in the Bill have a quite different profile. Nuclear decommissioning, driving an ambulance and flying a plane are somewhat different occupations; they have different standards and necessities. What is a minimum service level? I had a delightful four hours with representatives of the National Health Service last year—I was in the back of an ambulance because I had had a fall, and I was waiting to be admitted to hospital. The workers said that, if they had more of a reception area, they would not be here, but that it was nice to talk to me as it covered half their shift.
Let us be realistic about this: a minimum service level would be very easy to find if you had a properly organised service in the first place. Yesterday I was talking to a doctor in Cambridge, where I live. Apparently, there is going to be a junior doctors’ strike on Monday, and he said to me, “We’ve cancelled some of the routine appointments so that we have enough capacity to deal with emergencies.” That is on a strike day, and that is a doctor who is covered by that strike but who is also very cognisant of the needs of the community he serves.
There may be a need for some arrangements with blue light services, but there already are lots of arrangements with them. There are not groups of workers saying, “We refuse to talk to you—we want a few people dead.” Most of the workers are very keen on providing minimum services; most workers do not like going on strike. As I am sure the noble Baroness, Lady O’Grady, will be happy to tell us, most workers never go on strike in their whole career as trade unionists. They join trade unions for protection and benefits, and to have someone to help if they run into trouble, as well as to deal with an employer who steps out of line by being racist or sexist or something like that.
I have been active as a trade unionist, and most of the work of trade unions that I experienced was welfare work. You are helping to sort out problems—and more than once people have said to me, “Which side are you on?” You find that things escalate out of any reasonable action, and suddenly you have people saying, “I’m going to get them, I’m going to get them,” and you have to say, “Calm down; you can’t. Let’s just sit down and have a cup of tea and look at what the  options are.” Frankly, the trade union movement plays a big part in good industrial relations in this country. It plays a much bigger part in promoting good industrial relations than anything else. Hardly any time in a union organiser’s or member’s life is spent organising or even thinking about going on strike; it is mainly about making the work more pleasant and efficient.
These are the people who create the wealth of the country—that is what I would like the Government to remember—and if they were not there, we would have no wealth in this country. I see that we are going to have nuclear installation inspectors subject to minimum standards; but nuclear installation inspectors, as far as I know, have never been on strike, so what are their minimum standards going to be? Why are they in the Bill in the first place?
My amendment may look like Mr Micawber, but it would give the Government a chance to sort out what the Bill actually means. Apart from that, if the Government are so convinced that this is the right policy for Britain, it will give them something to campaign on at the next election. They can say, “Vote for us and we will bring this Bill into being.”
On a very final point, I served as the president of a trade union for some time; I go to meetings. I am afraid we spend far too much of our members’ money on legal services. There is an absolute demand by the executive that everything is absolutely legal. The profession of the noble Lord, Lord Hendy, makes a huge amount of money out of trade unions because we do not believe in breaking the law; we believe in adhering to the law. All the Bill will do is provide yet more challenges and yet more times when, sitting around the national executive table, we will say to the general secretary, “Are you sure we have got all the bases covered?” The general secretary will say, “I am pretty sure, but I will go back to our KC and absolutely finally check before we take this action.”
I therefore do not really think that this is necessary. It will not add to relations; in fact, it will sour them because it is an unnecessary piece of legislation. It will not be respected. Most employers do not want it. I have not got any letter from an employer saying, “Dear Lord Balfe, you are a Conservative, please go in and support this legislation”—not one letter. The Minister should think about pressing the pause button on this, because the Government have far more important things to do.

Baroness Donaghy: My Lords, we have had a reference to Charles Dickens; I am going to mention Lewis Carroll, because I think this is straight out of Alice in Wonderland: you are wandering through a maze, you do not know what questions to ask, you ask a question and all of a sudden the answer is, “Off with his head”—or “Off with her head” in my case. It really is very difficult to pin things down to common-sense questions and to pin the Minister down as to what he may or may not finally include in either the Bill or the statutory instruments. I will have a go, however, because I think the noble Lord, Lord Henley, is quite right that the report we have been referring to is quite a mild report.
I was particularly drawn to the conclusions and recommendations, one of which said—I think the noble Lord, Lord Fox, has already referred to it—
“We do not consider that the Government has given clear … reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned.”
I think that pinpoints exactly why the Bill is just an antagonistic approach to unions, rather than a sensible set of proposals. I have a specific question for the Minister is, the report suggests several amendments in its annexe: will the Government consider its amendment 4? I am not proposing it; I am just asking if this is something that would be considered. The recommendation is:
“In deciding whether to identify a person in a work notice and in specifying the work required to be carried out by them, the employer must not have regard to whether the person is or is not a member of a trade union (or a particular trade union) or any trade union activity the person has undertaken or otherwise been involved in.”
Are the Government minded to accept that amendment from the report?

Lord Hendy: My Lords, it is a great pleasure to follow my noble friend Lady Donaghy. After the intervention by the noble Lord, Lord Balfe, I really ought to declare my interests as in the register. I reflect that, over the last 41 years, I have represented many unions in strike cases including, in the last 20 years, a number in the European Court of Human Rights. Of course, I support Amendments 1, 50 and 51. I shall speak to Amendment 51 and the deployment of the JCHR report before the Bill comes into effect. I am grateful to the noble Lord, Lord Henley, for expressing his view of the JCHR report and I agree with my noble friend Lady Donaghy that it is a mild report. In my view, it is too mild, too gentle. As the noble Baroness, Lady Noakes, rightly pointed out, the ultimate arbiter will be the European Court of Human Rights. The difficulty for us, of course, is that any decision challenging this legislation in that court will arise out of a factual situation that has not yet occurred and will take years: it will be a long time.
There appears to me to be a precautionary principle here: if we are warned by the Joint Committee on Human Rights and many other legal commentators that there is a real danger that the United Kingdom may be in violation of a convention right, should we not apply the precautionary principle and say, “Let us not take that risk”? Imagine, in a domestic situation, that a small business person consults a tax lawyer over a particular scheme that he or she has in mind to reduce his or her tax liability and the tax lawyer says, “It is a tricky one, this: you may get away with it but, on the other hand, this may be in breach of the law.” Surely, any sensible small business person, having had that advice from a lawyer, would say, “Hang on, I am not going to go down that path and risk the consequences.” That is the principle that ought to apply here. I look forward to hearing from the Minister why that precautionary principle should not apply, given that we have had this warning about possible violation of our undertakings under the convention.
I should also like to hear from the Minister the Government’s view on the amendments proposed in the Joint Committee on Human Rights report on the Bill, to which the noble Lord, Lord Henley, is one of the signatories. My own view of the compliance of the Bill with the European Convention on Human Rights—of course, my view is no more valuable than anybody else’s—is that Article 11(1) of the convention protects freedom of association and the right to join and be a member of a trade union for the protection of one’s interest. The European Court of Human Rights made absolutely clear in the case of UNISON v the United Kingdom in 2001, and in a multitude of cases since, that the right to strike is protected by Article 11. Under Article 11(1), there are no limitations on the rights that are contained within Article 11(1).
Article 11(2), however, permits states to impose restrictions, and there are a number of conditions for those restrictions to be imposed—it must be prescribed by law and so on—but the most significant one in this context is that the restriction has to be
“necessary in a democratic society”
for certain specified purposes, such as prevention of crime, civil disorder, health and safety and, in particular, the protection of the rights and interests of others. There is a wealth of jurisprudence from the European Court of Human Rights on what
“necessary in a democratic society”
means: a pressing social need. Looking at the evidence from the Bill, it seems to me that the Government could not conceivably pass that hurdle, and I shall give four reasons why. First, no Government since the Trade Disputes Act 1906, by which strikes were first made lawful, have felt it necessary to impose legislation requiring minimum service levels, so how can it be necessary now?
Secondly—this point has already been made by previous Members—every sector of the six specified in the Bill does in fact negotiate minimum service levels. I hope the Minister is not going to say, “Not in the ambulance service”, because the Joint Committee on Human Rights heard evidence that agreements and arrangements are negotiated at local level in the ambulance service. That is the second reason why this is clearly not necessary in a democratic society.
Thirdly, the Government introduced a transport strikes Bill last October and in the memorandum specifically expressed the view that, apart from in transport, there was no need for further legislation in any sector to require minimum service levels. How on earth are the Government going to explain that to the European Court of Human Rights?
The fourth and final reason is that this Bill exceeds the requirements of the International Labour Organization. The ILO has a series of conventions, of which the most important is Convention 87. Since 1952, the ILO has held in many decisions that the right to strike is protected by Convention 87. By the way, this country was the first on earth to ratify Convention 87, the most ratified of all the conventions, which was signed by Ernie Bevin in June 1950. The ILO has specified that minimum service levels are permitted under Convention 87, but only subject to certain conditions, and there are four of them. First, the minimum service level must not be set by the state,  government or public authority. Secondly, the converse of that is that minimum service levels should be set on a bipartite basis, through employers’ and union representatives’ negotiations, or on a tripartite basis involving the state. Thirdly, workers who prefer to strike and who refuse to serve as requisitioned workers for a minimum service level must not be penalised by being sacked. Fourthly, only in certain sectors can minimum service levels be permitted.
Before I sit down, I will read one paragraph from the compilation of decisions of the Committee on Freedom of Association of the ILO:
“The establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.”
For those reasons, it is my opinion that the view expressed by the Joint Committee on Human Rights is too modest. If the Bill goes through, we run a real danger in this country of violating the convention, and I would be grateful to hear a refutation of those views from the Minister.

Lord Whitty: My Lords, it is a pleasure to follow my noble friend Lord Hendy. This discussion on the first amendment is bound to stray widely, but one of the areas it does have to consider is whether the various sub-committees and our adherence to and acceptance of international conventions going back more than half a century need to be jeopardised by this rather inadequate Bill. It is also a pleasure to follow the noble Lord, Lord Balfe; he says this Bill is unnecessary, and I totally agree.
As the noble Baroness, Lady Fox, implied but did not say, it is not only hyper-skeletal but hyper-political. It is political in a way which is dangerous, not least to the Government themselves. The clause we are debating does not say when or at what stage in the process Ministers would intervene and, if necessary, unilaterally set minimum service levels. Is it when a strike is first contemplated? Is it when the executive starts consulting its members? Is it when the members vote yes, in accordance with legal provisions? Is it when the first strike day is announced, or on the strike day? When is it? Either way, the difficulty is that in many cases, the Minister will be intervening unilaterally with a minimum of parliamentary scrutiny, and, as my noble friend said, there will already be jointly agreed minimum service levels. That is why it is dangerous to the Government: every dispute in which the Minister intervenes in this way becomes a political dispute.
We have spent years trying to take industrial relations out of politics, but this brings them right back in. A central feature of this Bill is that at any stage, the Minister’s own view can override all agreements and unilateral action by the unions to observe the health and welfare of the population at large and the minimum service level. That politicises industrial relations in a way that has not happened for many years. I hope the Conservative Party understands what it is doing in this respect.
The Bill is also unnecessary and political in the sense that the reason for it—which is largely coincidental—is that a number of different disputes have arisen at roughly the same time because of the cost of living crisis and the squeeze on public sector pay. The public are getting anxious about the situation and they see the Government are not able to resolve it, so the Government have invented this Bill. They want to use the period from now until the general election, which the noble Lord, Lord Balfe wants to jump, to tell the public that they have a solution to all this industrial unrest. But it is not the solution; it is a promulgation, if they are not careful, of that industrial unrest.
When I intervened at Second Reading, I told the Government that they had an alternative: they could sit down and talk, make a new offer and change things. At least somebody in government—albeit not universally—has listened to me or come to the same conclusion. As a result, the Government are now sitting down with the RCN, which they refused to do at one point. They have made a better offer to firefighters—or at least, the fire brigade’s executive thinks the offer could be referred back to its members. Even in some of the disputes involving the railways, the next period of strikes has been postponed because the employer or the Government have moved. That is the alternative to intervening unilaterally and politically, in a way which is very dangerous to this Government and to the rights of workers and trades unions. But think how much worse it would have been if, instead of making an offer to the FBU, the Government had taken a unilateral decision to make the present MSL irrelevant and to statutorily impose a new one, and if some firefighters or their representatives had been nominated in the employer’s work notice, been told they had to strike-break, and refused to. Workers would have been dismissed, becoming potential trade union martyrs, and the union could have been sued for vast sums.
If that happened, how would noble Lords imagine that trade union executives, and ultimately members, would respond? This measure, the ability to intervene in this way, will actually prolong strikes and create more strikes, not solve them. The Government are going to tell the country that they have the solution but they have the opposite, and it is time this Bill was withdrawn.

Lord Callanan: My Lords, I am grateful to all those who have contributed to this exciting—almost, in some respects—debate about the main issues we will discuss as the Bill progresses.
Let me start by addressing the point made by a number of noble Lords—including the noble Lords, Lord Collins, Lord Fox and Lord Hendy—on the report from the Joint Committee on Human Rights. Of course, we are grateful to the committee for its work, and, in the normal course of events, we will respond to the report in full. Let me say, before then, that this Government do consider that this Bill is compatible with the ECHR.
As the noble Baroness, Lady Chakrabarti, pointed out, on the introduction of the Bill I made a statement under Section 19(1)(a) of the Human Rights Act that the provisions of the Bill are compatible with convention rights. Indeed, I have to do so on all the Bills I introduce into this House, and I have been doing a lot of that recently. I say to the noble Baroness that this is a duty I take very seriously. I would not just wake up in the morning and sign a bit of paper. I respond to legal advice that I receive, as I do on every Bill, and I often go back and query that legal advice, because I take my duty to sign that statement seriously. I can tell the noble Baroness that I was happy to do so in this case, because I am confident that the Bill strikes the right balance between the ability to strike and the rights and freedoms of others.
It is a question of balance, and I am grateful for the comments from my noble friend Lord Henley, who is actually a member of the committee, in his helpful speech. As he pointed out, the report does not say that the Bill is not compatible with the ECHR. Regulations that set minimum service levels in specified services will, of course, need to be compatible with the ECHR, including Article 11, and the Government will ensure that they introduce regulations that are compatible. Obviously, failure to do so would result in a breach, and a court would be able to grant such remedy as it considers just and appropriate should a union or others take a matter to judicial review. I am sure there is a lot of thinking about that at present.
In response to the question from the noble Lord, Lord Collins, about when the provisions would apply, and the issue of retrospectivity, I agree with my noble friend Lady Noakes. It will of course apply only to future action. After Royal Assent, we need to lay the appropriate regulations, which would need to be approved by both Houses before the legislation can come into force.
The noble Baroness, Lady Donaghy, asked me whether employers can discriminate against trade union members when issuing a work notice, I am happy to confirm to the noble Baroness that the Bill is clear that employers should have no regard to trade union membership when they are issuing work notices.

Baroness O'Grady of Upper Holloway: My noble friend Lady Donaghy also raised the issue of recommendations that refer to trade union activities. The real fear here is that a bad employer could use a work notice to victimise and discriminate against not only union members, which, as the Minister says, is covered by the Bill, but against elected union workplace representatives. I wonder whether the Minister can give us reassurance that moves will be made to ensure that that cannot happen. It clearly cannot be right that an employer could victimise elected union representatives in the work notice. We hope it would never happen, but we cannot rely on hope.

Lord Callanan: I think the noble Baroness was, in effect, asking me to consider amendment 4 from the JCHR, which is what the noble Baroness, Lady Donaghy, was referring to. I was about to come on to that. The noble Baroness, Lady O’Grady, is  getting slightly ahead of herself. There are in fact later amendments, Amendments 27 and 28, tabled by the noble Baroness and the noble Lord, Lord Collins, that seek to achieve a similar effect to that recommended, and we are going to have a fuller debate on that in group 10. So, if the noble Baroness will forgive me, I will address those points in more detail when we get there.
To restate why this legislation is needed—because this has been a general debate—let me set on record the Government’s position that there needs to be a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect their essential services, which they pay for through their taxes, to be there when they need them. The minimum service levels aim to restore this balance in order to protect the lives and livelihoods of the public from disproportionate impacts and results of strike action. This important protection should be afforded, in our view, to members of the public without delay, which is why we are opposed to the amendments seeking to delay the imposition of this legislation.
Amendment 1 seeks, in effect, to extend the impact that strikes can have on the wider public. It would ensure that strikes could continue for up to six months of the whole strike mandate period after the Bill comes into force without the relevant minimum service level being applied. Parties, including employers, unions and workers, will have sufficient notice of minimum service levels prior to their application via, for example, the consultation or parliamentary processes that will need to take place before those regulations come into force. So our view is that further notice is not necessary.
Amendment 50 seeks to delay commencement of all provisions of the Act, including the regulation-making powers, until two years after the day on which the Act is passed. My noble friend will be unsurprised to know that the Government do not support this amendment. Practically, the legislation will not take effect, as I have said, until the regulations are made to specify the relevant services that minimum service levels shall apply to and the levels of service that an employer can require its workers to provide in relation to strikes. This amendment would mean that the earliest point at which minimum service levels could be enforced in practice is two years after the Act is passed.
Amendment 51 would result in further delays that essentially duplicate the work and the report of the Joint Committee on Human Rights that has already been published, requiring yet another report before minimum service regulations are made. Again, we feel that this would be unnecessarily burdensome and serve no practical purpose, because these amendments would just delay the implementation of MSLs. I realise the Opposition would like to do that, but it is not the position of the Government. Therefore, we cannot accept these amendments, which, for no good reason or constructive purpose, would significantly extend the disproportionate impact that strikes can have on the wider public, on which lives and livelihoods depend. Therefore, I hope that the noble Lord will withdraw his amendment.

Baroness Fox of Buckley: I completely support the Minister’s aspirations for the public to be able to conduct their lives without disruption. They want to be able to use transport and health services. But when the minimum service levels are decided by whoever it will be—we are unclear—will the Government be penalising those employers who do not provide them on non-strike days as well? I just wondered. We do not know what the minimum service levels will be. If 50% of the trains need to run, that would mean all signalpeople would have to work. I would like to be able to use the same Bill to have a go when I cannot get a train, the ambulance does not come or what have you, but it is the fault not of the strikers but of the organisations or institutions. Can the Minister extend this Bill so that I can use it to sue the people who do not deliver the services I need to live my life?

Lord Callanan: The noble Baroness says that these regulations will be imposed by whoever feels like it. They will be imposed by this Parliament because we are consulting on minimum service levels in three areas that will be subject to regulations. Each sector is different, which is why we have laid some consultations on the regulations; we are interested in hearing views. Again, the noble Baroness is getting ahead of herself. The noble Lord, Lord Fox, has amendments in later groupings similar to what the noble Baroness wishes to bring about; perhaps if she restrains her enthusiasm, we will get to these points later.

Lord Collins of Highbury: I just want to pick up the point about consultation. The Bill talks about six sectors but the Minister keeps referring to three consultations. Those consultations do not cover all the people in the sector who are referred to in the Bill. Can the Minister give us an idea of who in those six sectors will be consulted and when? We have had three consultations on a narrow element; not everyone in transport or health has been consulted, for example. Can the Minister give us a timetable and an idea of who will be consulted and when?

Lord Callanan: Clearly, the answer to the noble Lord’s question is that anybody can respond to the consultation. We have issued three draft statutory instruments in three sectors; we are interested in hearing responses from trade unions, members of the public, et cetera.

Lord Collins of Highbury: My Lords—

Lord Callanan: Can I answer the noble Lord’s first question before he asks me another? If we choose to move ahead—if the Bill is passed and the powers are granted—and we think it sensible to impose minimum service levels in other sectors that are allowed by the Bill, again, we will publish a draft consultation and people can respond to that in due course. The noble Lord has another question.

Lord Collins of Highbury: I asked the Minister a specific question but I am afraid that he did not answer it. Do the three consultations that have been issued cover all the categories of worker within that sector, as mentioned in the Bill? If not, when will other  people in that sector be consulted, and what will the timetable for the others be? My understanding is that not all transport workers have been consulted on that draft.

Lord Callanan: I am sorry if the noble Lord finds this confusing. On the sectors where we have introduced draft regulations—let us take the example quoted by the noble Lord of rail services—those consultations are in rail services. If other transport workers, in relation to whom we have not yet chosen to introduce minimum service levels, wish to respond to that consultation in generality, of course they can do so. We will take their interests on board.

Lord Collins of Highbury: I hope that we will come back to this. I keep coming back to the words of the noble Lord, Lord Lisvane, which always echo in my mind: policy and legislation. We have legislation but no idea what the policy is. The Government have committed to consult. There are six sectors that will be affected by this Bill. The Government have started consultation only in small parts of those sectors. For example, in transport, they have consulted only on passenger rail, not on freight rail or buses or any other element of the Bill. When are those elements going to be consulted? When are the Government going to start launching that?

Lord Callanan: I am not quite sure what the noble Lord is saying. Is he saying that he wants us to introduce minimum service levels in all those sectors as well? If he does, I will take that comment back to the relevant Secretary of State; perhaps they will wish to introduce MSLs in those sectors as well. However, as the noble Lord has observed, the categories in the Bill are fairly widely drawn. In the short term, we, as a Government, have chosen to consult on regulations in those specific sectors. It may be that, in future, if Parliament grants us the powers, we will consult on additional regulations but, at the moment, we have no plans to do so. We have consulted on those three particular sectors.

Baroness Chakrabarti: Can the Minister explain why this approach to the legislation was adopted? I know why I object to it. I know why the noble and learned Lord, Lord Judge, objects to it. I have a view about the importance of primary legislation. When people’s rights and freedoms are being constrained in this way, there should be foreseeability; by the way, when the Minister answered earlier on Section 19(1)(a) and how seriously he takes the obligation to make a statement on compatibility—I believe him—he did not set out his reasoning as to how this is in accordance with law in terms of foreseeability.
Pragmatically, I just want to ask him this: why was this approach adopted rather than the approach of formulating the policy in each area first? Frankly, purpose-specific primary legislation should then be brought to deal with a minimum service agreement in one sector that could not have been achieved by consent.

Lord Callanan: In some sectors, of course, some minimum service levels have been agreed by consent. We have said that, if that MSL is sufficient  and we view it as adequate, we may choose not to regulate in those particular sectors.
With regard to Section 19(1)(a) statements, the Government do not comment on legal advice that they receive; that is a long-standing tradition for all parties in government. I can say only that I take my legal obligations seriously, as all Ministers do. I read the legal advice that I am given. If I have queries about it, I go back to the lawyers and ask them for further details. In this case, I was satisfied that the Bill’s provisions are compliant; therefore, as is my legal duty, I signed the declaration before the Bill was introduced to Parliament.

Lord Collins of Highbury: We are going to return to these areas as we progress through the clauses.
I just want to return to my noble friend’s point; the Minister only sort of answered the question. This Government started off with a manifesto commitment and a pledge to introduce minimum service levels in transport. That has sort of disappeared. Now it is a broad power—so broad that we will have no idea of who will be captured by this primary legislation until we see secondary legislation, which we will not be able to amend or adjust in order to take other factors into account. The noble Lord, Lord Balfe, is absolutely right about what we have heard across the House.
I come back to the report from the Joint Committee on Human Rights, which states:
“The case has not been adequately made that there is a ‘pressing social need’ for imposing minimum service levels across the breadth of categories currently set out in the Bill. For example, the category of ‘education services’ is so broad that it might apply as much to private tutors and evening class teachers as to school teachers. Similarly, ‘transport services’ could include private taxi drivers.”
That is the point I am making: at what point will taxi drivers be next in line? The Government have these powers. We are giving them these powers. It comes back to Article 11. Surely, when we make laws, people ought to know how, or whether, they will affect them. We will not know that until a Secretary of State plants a statutory instrument; as the noble Lord, Lord Hodgson, said, such instruments are not fair because we will not be able to amend them. In his report to this House, the noble Lord, Lord Blencathra, criticised this method as being fundamentally undemocratic because, as he said, these are not technical issues; they attach to fundamental human rights. That is the opinion across the House. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.

Amendment 2

Lord Fox: Moved by Lord Fox
2: The Schedule, page 3, line 22, at end insert “under section 226(2D) of the Trade Union and Labour Relations (Consolidation) Act 1992”Member’s explanatory statementThis amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation.

Lord Fox: My Lords, I beg to move Amendment 2 on behalf of my noble friend Lady Randerson, who is delayed on official business. After the preliminaries, I hope that we can start to get a little more specific. I would characterise Amendment 2 as a tidying-up exercise which I am sure that the Government will be happy to accept.
As we know, the Bill establishes a legal mechanism to implement minimum service levels when there may be strikes. It does so by amending the 1992 Bill referred to in this amendment, so that minimum service levels are one of the requirements before trade union action is protected from liability in tort.
At Second Reading, my noble friend Lady Randerson queried the list of public services on the grounds that they were vague and that some of them were provided by the private sector—for example, transport—and paid for by consumers, in contrast with schools and the NHS, which are provided by government money and free for the public to use. The Minister responded that the list was based on the Trade Union Act 2016. Page 3, line 22, leaves the definition of relevant services entirely in the hands of the Secretary of State—“Relevant to whom?”, one might question. This amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation and attempts to add precision by referring to that piece of well-established legislation, which comes with legal precedents and some understanding.
I suggest, particularly to this side of the House, that your Lordships would welcome anything which limits the amount of interpretative power that is left with Secretaries of State. Parliament should broadly welcome a tiny bit of specificity in the sea of uncertainty that this Bill creates.
I turn to Amendments 5, 11 and 12 in this group, and apologise for speaking before those who have tabled those amendments. These are the first in a series of amendments tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, in a strategy to remove all the services currently named in the Schedule from the Bill. In essence, this is an opportunity to speak about each of these groups separately to probe the Government’s view on how these sections will be viewed. While several groups have been separated out, this group includes three types of workers, as specified in the legislation.
To establish a frame of reference, it is worth reminding ourselves that, as the Library has helpfully noted, the Trade Union and Labour Relations (Consolidation) Act 1992 made it an offence to take industrial action in the knowledge or belief that human life will be endangered or serious bodily injury caused. As a result, we have seen several unions, particularly those represented in the NHS workforce, agree to provide life and limb cover during strikes. No doubt this will come up in later groups. There is no fixed definition of what this entails in practice, but recent examples have included negotiations to ensure that critical services could still run during the recent strike by paramedics and ambulance service workers. We will hear more of this when we debate the third group.
Under the provisions of the Civil Contingencies Act 2004, the Government also have general emergency powers that they can use when strikes seriously threaten  people’s welfare. In such cases, a Minister may make regulations to protect or restore facilities for transport or health, for example, or to protect human life, health or safety. One of the preconditions for the exercise of this power is that an emergency has occurred. An emergency is defined as
“an event or situation which threatens serious damage to human welfare in a place in the United Kingdom, … the environment of a place in the United Kingdom, or … war, or terrorism, which threatens serious damage to the security of the United Kingdom”.
Amendment 5 seeks to exclude the fire and rescue service from the Bill. I have other things to say about the fire service in a later group, so I will refrain from speaking at length about it here. However, I ask your Lordships to remember that point about emergencies, because it will be very salient when we talk about fire and rescue services later.
Amendment 11 would remove
“decommissioning of nuclear installations and management of radioactive waste and spent fuel”
from the Bill. There has been no strike action in the nuclear decommissioning and waste management sector, and minimum safe staffing level agreements in the event of industrial action are in place in significant parts of the sector. The presence of this group in the Bill is a provocation rather than anything else.
Finally, Amendment 12 seeks to remove border security from the Bill. There are indeed issues with this service, and members of the Public and Commercial Services Union took strike action at various UK airports and seaports in December 2022. Further action has been announced and may occur later this year but, at a time when the Government are spending so much political capital on border controls, it seems careless to threaten the actual officers and employees that we have in this sector with the sack. The idea that we will improve our borders by firing the workforce we already have beggars belief.
I suspect that this will be a red rag to the ministerial bull but, as the JCHR puts it:
“Far from bringing the UK in line with other European countries, as the Government have argued, the Bill represents a significant departure from their practices where pay and minimum service levels are typically decided through collective negotiations and agreement”,
rather than being imposed,
“with disputes settled between trade unions and employers. Instead, the Bill makes no reference to collective bargaining nor does it subject minimum service levels to independent arbitration should it be necessary.”
This is the first of the groups on which we will have the discussions that focus on those issues.

Lord Hogan-Howe: My Lords, I apologise, as I was present but did not speak at Second Reading. Given that these amendments are around the list of relevant services and intend to reduce the list of affected services, I was surprised that policing was not included in the list. There is no definition of relevant services in the Act although, as the noble Lord, Lord Fox, said, emergency services are a clear criteria that has been applied. Given how policing has developed over the last few years, the decision about whether you have this Bill is, as the noble Lord, Lord Whitty said, a very  political one. That is not something that I want to take a position on. My point is only that if you are to have a list, is it a comprehensive list and can this list be improved?
Over the past 20 or 30 years, policing has been more civilianised. Police officers have been removed from tasks for which they did not need powers, and more police staff—who were called civilians—have been employed because they did not need policing skills or powers and, frankly, they were cheaper. This has been a big push to make sure that the police get more efficient, and I support it generally. It is also true that the trade unions have had voluntary agreements to maintain good services throughout any industrial action, of which there were quite a few instances during my time in policing. Those systems have held, but the Bill addresses where those voluntary agreements do not survive. Therefore, I want to ensure that policing has been considered properly.
The ratio of civilian staff to police officers is about 3:1 around the country; for every three police officers there is one member of support staff. It is slightly different in the Met for operational reasons. The two areas where this ought to be considered seriously are forensic science provision and call handling. Nearly 100% of those who provide forensic science services are police staff, doing an excellent job. It is vital that you collect forensic evidence as soon as possible after the event. It is usually known as the golden hour; any forensic evidence will deteriorate. If you must restrict the number of scenes that you attend or the time that it takes to attend, it will have a significant impact, particularly for serious crime. This is probably swinging the lamp, but I would like to see the police investigate properly more volume crime by going to the scene and seeing whether there is any forensic evidence. We hear of too many instances where sadly that is not the case. That is what should happen. Clearly, forensic science is vital to that. I am afraid that there is no way that police officers can easily step into that field. Even if you could give them the skills, you cannot give them the experience. Just having the skills is not sufficient to make sure that you look in all the right places and in the right way.
Call handling is another vital area. In London—this applies around the country—there are about 5 to 6 million telephone calls a year, probably one in four of which are 999 calls. Each call is vital. Between approximately 1,500 and 2,000 people answer those calls over a 24-hour period. It is not as easy as it was when I used to go into the control room, answer the phone and work the radio. The radio is now a computer system; you have to have the skills. Answering the phone is relatively straightforward, but the volumes are massive. Of course, it is vital that you answer the phone, including 101 calls; if you do not, or you do it too slowly, you will not know whether there is someone on the other end with a life-changing event. You have to get there quickly. It is vital that phones get answered because, even in a digital world, it is still the only way that people can get help. I am surprised that they are not included as a group.
The police service is a fallback for the fire service. In the event that fire brigades do not or cannot answer calls, the police will answer them, mainly because, for every 10 police calls there are probably about four or five ambulance calls and less than one fire call. Thankfully, we have far fewer fires now than we have ever had. The arrangement is that the police act as the last resort, given that numbers are relatively low compared to theirs. They also take calls for the coastguard, which is not relevant in a place such as London but is certainly a big issue on the coast, where many emergencies require an intervention of the coastguard to co-ordinate the other emergency services that might attend.
Will the Minister seriously consider why the police service is not included? I am not in a position to judge whether it asked to be included, or what its view was in consultation. It has not asked me, nor have I asked it, but I am really surprised that it is not included, for the reason that I have given.
We could have added a few more to the list; I have just given two main ones. Covert surveillance quite often now involves police staff; covert technical surveillance includes police staff. If you accept the principle—I realise that the Opposition do not—that the Bill is necessary, the list needs to be different. I accept that the Opposition want to reduce it, but I am asking whether we could consider extending it.

Lord Collins of Highbury: To pick up the point made by the noble Lord, Lord Hogan-Howe, what we are trying to probe here is why any category is within the ambit of the Bill and why they have been specified. We will come back to the specific amendments in the group, but the noble Lord asked a question worth remembering: is it proportionate and necessary to have the Bill, bearing in mind that we have arrangements for minimum service levels—we have called them a range of things and noble Lords have referred to them—and they work? The noble Lord referred to circumstances in which they have worked, so we come back to the question: what is the point of this Bill?
The noble Lord, Lord Fox, is absolutely right to ask—the noble Lord, Lord Balfe, said this too in his contribution on the previous group—why the very narrow, specific group,
“decommissioning of nuclear installations and management of radioactive waste and spent fuel” ,
has been included, given that there has not been a dispute or action that would require the Bill being applied. Surely we legislate for a reason. This highlights the fact that, as was said by my noble friends Lady Chakrabarti and Lord Whitty—whose contribution was absolutely right—we are increasingly seeing this as a political issue. It is not about resolving industrial disputes and providing support; it has another agenda.
On fire and rescue services, the Joint Committee on Human Rights mentioned the 2004 Act, and the Civil Contingencies Act also comes into play, where there are legal obligations. The Government have to understand that they are raising minimum service levels at a time when people in the public sector are striking because they are so concerned about the failure to meet minimum service levels. That is what doctors and nurses are  worried about. I have heard from many nurses, including Members of this House, who have made that point—who would never have considered going on strike, ever. They made it very clear that, when they were in service, they would not have gone on strike, but they understand that the difference between then and now is in how nurses are valued, seen and even respected. That is the difference now. I heard the chair of the Police Federation make exactly this point on television. On the police not being able to strike he said that, when that was introduced, they were told that they would be compensated; it would be recognised that they had that obligation to serve the community. They do not feel that now, after a 17% reduction in their real wages. That is what people are really concerned about.
We are probing the categories that have been included because it seems so arbitrary. It comes back to the question of who is being consulted and when. It is not the six categories; it is not a broad range of people, even though the powers in the Bill will cover those areas. What is the minimum service level for border security? I hope the Minister can answer that. Is it a two-mile queue at Dover? Is it a completely blocked M20? Is it my having to wait three hours at Luton Airport because there was not sufficient staff? What is the minimum service level in those categories?
As it moves through Committee, I think the Minister will struggle to justify why the Bill is being introduced. It is a terrible Bill that does not do what it—supposedly—intends to.

Lord Callanan: I thank all three speakers in this debate. Amendments 2, 5, 11 and 12 seek to alter the sectors and services that are within scope of having minimum service levels implemented. Amendment 2 would stop minimum service levels being applied to education services for those over the age of 16 and rescue services in relation to fire and rescue services. Amendments 5, 11 and 12 would each remove one of the identified sectors from the Bill.
Amendment 2 specifically seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation. The practical effect of this would be that minimum service levels would not be able to be applied to education services provided for those who are over the age of 16 and services which constitute “rescue services” in the context of fire and rescue. I am really not sure how that could work in practice, bearing in mind that the same personnel often provide the same services.
Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in a dispute. This applies equally to education services for those aged over 16, as well as fire and rescue services, which is why they have been included in the legislation. In my view, it would simply not be right for students who attend a sixth form or further education college or university to be automatically ruled out of scope of minimum service levels while pupils aged 16 and under are not. Their education is no less valuable or important.
Additionally, there should be the potential for employers in the fire and rescue services to consider rostering staff to provide minimum service levels in  response to road traffic incidents or in flood responses. Bizarrely, the amendment seems to be intended to prevent that. If you have a number of firemen on duty, those same firemen will be responding to house fires as well as car accidents, for instance. I do not see how there can be a distinction.
Let me also highlight what the legal ambiguity of this amendment could lead to. Subsection (4) of new Section 234B, as currently drafted, lists the key sectors that MSLs can apply to. There would then be a conflict between that section and the existing Section 226(2E) of the Trade Union and Labour Relations (Consolidation) Act 1992, over which the amendment would presumably seek to take precedence. On that basis, I therefore cannot support it. The Government will set out, via consultations, what services may be in scope of minimum service levels, just as the published consultations for fire, ambulance and rail services that we debated in the previous grouping have done.
On the remaining amendments, the key sectors outlined in the Bill stem broadly from the 1992 Act, as amended by the Trade Union Act 2016, as they have been long recognised as important for society to function effectively. As I have already said, strike action in these sectors has the potential for far-reaching consequences for the public. Fire and rescue services, as I said, routinely deal with emergency incidents that pose an immediate risk to the public, and strike action could impact on public safety. The Government take the same view that ensuring safety at nuclear sites is also of the highest importance, so it is right that nuclear decommissioning is within scope. Finally, without a permanent and skilled presence at the border, there is a significant risk to the security and prosperity of the UK. I will respond to the noble Lord, Lord Collins: of course, many other countries, because of the way that their border security is structured, actually prohibit strikes completely in border services, so we are not going that far.
The noble Lord, Lord Hogan-Howe, will know better than I do that some policing services are already restricted from striking. But I do take on board his point about the other essential elements of the policing service that relate to that.

Lord Collins of Highbury: My Lords, can I just ask—

Lord Callanan: Let me respond to the noble Lord, Lord Hogan-Howe, and then the noble Lord can come back. I will take on board the points of the noble Lord, Lord Hogan-Howe, inquire for more details from the Home Office, and come back to him in writing. I will now take the intervention of the noble Lord, Lord Collins.

Lord Collins of Highbury: No-one disputes what the Minister is saying in terms of the importance, particularly with emergency services, of that requirement. Can he tell us what assessment he made of the existing legislation, both the Civil Contingencies Act and the 2004 Act, in relation to this? What we are debating is why the Bill is necessary. It is not clear that the Minister has made the case.

Lord Callanan: I accept that the Labour Party does not believe that we have made the case; that is why we are having this debate. We picked the sectors because they were broadly in line with the 1992 Act, but of course there are good cases to be made for additional sectors, as the noble Lord, Lord Hogan-Howe, has intimated—

Lord Collins of Highbury: Can the Minister answer the question?

Lord Callanan: We will take on board all of the requests for additional services to be included. Of course, we have considered the effects of existing legislation as well, but there is, apart from the bans in certain sectors, no other legislation in the UK at the moment indicating the provision of minimum service levels. We know that some minimum service levels are provided by agreement between unions in some areas, but not in others at the moment—

Lord Collins of Highbury: Can I press the noble Lord? I think it is a fundamental point; he cannot just dismiss this with, “Oh, we did an assessment”. Tell us. The 2004 Act and the Civil Contingencies Act cover these areas. Why does he need this additional Bill in those particular sectors?

Lord Callanan: The Act does not cover minimum service levels in those sectors. I do not understand the point that the noble Lord is making. There are no minimum service level Acts in the UK at present; I think that in one of the contributions—it might have been the noble Lord’s—the point was made that MSL legislation does not apply in the UK at the moment. It is not something we have done previously, but we now consider that to be the case. I will take the intervention of the noble Baroness, Lady Chakrabarti.

Baroness Chakrabarti: I am grateful to the Minister. I think the two points that are emerging, that I would be grateful for assistance with from the Minister, go like this. The first is that on one level, these six areas are very broad—this was highlighted, in a way, by the noble Lord, Lord Hogan-Howe. For example, “health services” is incredibly broad: everything from dental hygiene to ambulance services. Some of these things are potentially emergency blue-light services and some are not.
By contrast, there are services that have been left out. The Minister then responded to the noble Lord, Lord Hogan-Howe, by saying, “Oh well, thank you for that. Perhaps we’d better add to the list”. But what he did not say was, “Perhaps we need more precision in the list”, as opposed to asking whether the list should be longer or shorter. It is this point about precision, is it not? This again goes back to the question about foreseeability and whether we really know what is going to happen as a result of the very broad brush-strokes with which the Bill has been painted.
On the point about the Civil Contingencies Act, that is a very broad power to safeguard life in public emergencies. The regulation-making powers in that  legislation would allow Ministers very quickly to create and enforce minimum service level agreements if the country was truly at risk.

Lord Callanan: We do not feel that the Civil Contingencies Act gives us the power to impose minimum service levels in the sectors that we have identified, which is why we are seeking this additional primary legislation, but I accept that there is a balance to be drawn. Noble Lords have seen two elements in the debate today between certain Members who do not want the legislation at all and do not believe in the principle of minimum service or safety levels, as it has been referred to—

Lord Collins of Highbury: It is not correct to say that we do not believe in minimum service levels or in protecting people—far from it. As my noble friend will say later, we have negotiated and achieved minimum service levels across the board. The noble Lord, Lord Hogan-Howe, mentioned the fact that they have been achieved. We are asking whether this Bill damages the co-operation and support for those minimum service levels. We think it will; it will harm the situation.

Lord Callanan: I think that comes down to the essence of the political disagreement, and maybe I was not exposing myself correctly, but certainly the Opposition disagree with the minimum service levels legislation. I accept that in some areas the noble Lord might believe in minimum service levels but, as I have said, if voluntary negotiations are in place in certain sectors, that is preferable to the heavy hand of legislation, and we accept that. However, in the case of ambulances, some unions in some areas have agreed minimum service levels and others have not, so we think it is right to have the back-up of legislation in case we need to reach for it, but we hope that we do not need to use it.
As I was saying in response to the intervention by the noble Baroness, Lady Chakrabarti, this is about the essential political balance and what services should be included. I think the noble Lord, Lord Hogan-Howe, makes a good case that policing services should be included, and I will get him a full reply on that. That is the essential political judgment that the Government took when we were drafting this legislation about what services should be included, but I accept that there is political difference of opinion. Some people think they are too broadly drawn, some people think they are not widely enough drawn and some Members think additional services should be included. I can present only the legislation and view that the Government took on this at the time.
With that, I have concluded my remarks in response to the group, so I hope that the noble Lord, Lord Fox, will feel able to withdraw the amendment he moved on behalf of the noble Baroness, Lady Randerson.

Lord Fox: My Lords, I thank noble Lords for their comments and speeches on this group. I think we are beginning to draw the lines a little more clearly. First, I am delighted that the Minister has come out as a bulwark against legal ambiguity. I will clean up our  legal ambiguity by withdrawing Amendment 2 shortly, if he clears up his legal ambiguity by withdrawing the Bill.
Looking at the rest of the debate, I think I am beginning to see the problem, which is the difference between minimum service levels and emergency cover. Some of the services highlighted in this Bill are emergency services; they are services that you need in extremis. Some of them are in the Bill, and some of the ones that the noble Lord, Lord Hogan-Howe, mentioned are not. Some of them, particularly transport, are not generally services that you need in extremis. In that case, minimum service level is an appropriate term.
For the others, emergency cover is covered in the Civil Contingencies Act, and the trade union Acts of 1996 and 2002 are more appropriate. In reverting to the language of minimum service level when referring to services that are required in extremis, the Minister is accidentally or deliberately missing the point. I think we will come back to this on a number of occasions, so it would be helpful if the Minister can be persuaded to understand it, even if not to agree with it. On the basis of trying to bring us all together, I beg leave to withdraw Amendment 2.
Amendment 2 withdrawn.

Amendment 3

Baroness O'Grady of Upper Holloway: Moved by Baroness O'Grady of Upper Holloway
3: The Schedule, page 3, leave out line 25Member’s explanatory statementThis amendment would remove “health services” from the Bill.

Baroness O'Grady of Upper Holloway: I am speaking to Amendments 3 and 4 which are tabled in my name and the name of my noble friend Lord Collins. There are many across this House who believe that the Bill is undemocratic, unworkable and incompatible with human rights and international law, but I want to focus on the specific impact on health services.
The Bill would have huge negative consequences for our NHS and for all of us who rely on the motivation, commitment and morale of health staff. I am sure noble Lords are aware that the NHS workforce disproportionately relies on the labour of women, who make up 75% of staff, and the dedication of black and ethnic minority staff, among whom trade union membership is highest. No doubt we will get on to the equality impacts of the Bill, but it seems appropriate to start by quoting the Equality and Human Rights Commission’s observations on this Bill. It says:
“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill … the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services”,
and that
“healthcare sector trade unions already provide ‘life and limb’ cover during strikes”.
Will the Minister explain exactly why, in such a short period of time, the Government’s position on the inclusion of the health sector has apparently somersaulted?
The commission also expressed the concern that the Government’s human rights memorandum makes no reference to Article 4 of the European Convention on Human Rights on the prohibition of slavery and forced labour. Given that health workers who do not comply with a notice to work would face the sack, I would be interested to hear the Minister’s reply to the commission’s concern about that article.
Many of us have previously questioned the deeply flawed evidence base contained in the Bill. The Government have repeatedly defended themselves by claiming that minimum service levels are mainstream in other countries, but the fact remains that the key question is not about the existence of minimum service levels—after all, we already have those in the NHS. The real concern is whether such arrangements are imposed by Westminster government diktat, as the Bill seeks to do, or are negotiated voluntarily by agreement; that individual workers who do not comply can be sacked; that all striking workers could be stripped of protection against dismissal if their union is deemed not to be taking these mysterious, undefined “reasonable steps”; that injunctions could be more easily issued to stop a strike; and that union funds could be even more heavily sanctioned.
Health unions believe that the Bill is a distraction from the real issues of severe workforce shortages, patient safety and decades of underinvestment across health and social care, especially in relation to workforce supply and retention. The sacking of nurses on strike, as the Bill provides for, will only make that crisis worse.
There have been many pleas from individual health professionals. One GP who wrote to my noble friend Lady Thornton said they witnessed daily the huge pressures facing the workforce, which is still tackling the pressures of the Covid-19 pandemic and the huge backlog of care that that created. Waiting lists have soared while their pay has been eroded. The Government said the Bill would help to ensure patient safety on strike days, yet they have failed to take action to address the workforce crisis in health and social care.
It is already an established principle that healthcare unions co-ordinate strike action in a way that allows critical services to continue, and existing life-and-limb protections exempt certain categories of staff from strikes. Instead of focusing on minimum service levels on strike days, the Government should be taking action to ensure that the NHS is safely staffed 365 days a year. Those are just some of the reasons why health staff on strike have received such strong public support. The latest YouGov poll shows that around two-thirds of the public support nurses and ambulance workers who have taken strike action.
The NHS has a long and proud record of social partnership which is at the heart of industrial relations in the NHS between employers and unions. Of course, that social partnership does not guarantee that differences of interest will not arise, but the Bill risks all that good faith and good will, and it is not just unions who are saying so. Noble Lords will be aware of the concerns of NHS Providers, which says it is essential that a focus on legislative change does not worsen industrial relations at a time when it is imperative that the Government and the unions get around the table to seek a resolution and avert further escalation and  disruption to patient care. It believes that the Bill risks damaging the relationship between NHS trust leaders and their staff, and between trust leaders and local union representatives, at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike action.
Concerns have also been raised by large private companies operating in the health sector that currently do not know whether they are in or out. Many of those companies are concerned that they will be caught in the net of this Bill, and they would like to know if they are. Frankly, many of them are telling us that they would really not welcome what they see as unwelcome interference in their own industrial relations. We have to contemplate that there may be bad private sector employers operating in the sector that may be brought into scope for the purposes of the Bill.
As Parliament is being kept in the dark about exactly which employers and workers fall within scope, it would be very helpful if the Minister could provide some answers. I am going to give an example I have thought of. Can the Minister tell us in principle whether the designation of health services could include Amazon? We are all aware that various partnerships between Amazon and the NHS have been mooted, largely in respect of data and web services, but also presumably involving the delivery of kit. Your Lordships will be aware that the GMB union has organised workers at the Coventry warehouse, who have been on strike for better pay and conditions and for union recognition. Therefore, can the Minister confirm whether, in principle, a company such as Amazon could be given licence to threaten those workers to work or face the sack?
Can the Minister also tell us more about these consultations? We have had a consultation only on ambulance workers. Is it significant that we have not had consultations on other groups of workers? Is it because they are not going to appear, but the threat of these sweeping powers being taken is just left hanging over other groups of workers’ heads? What is the significance of this? Why have the Government issued a consultation only on ambulance workers? Frankly, it is a mess, and workers and employers are worried.
Finally, can the Minister give us a straight answer on how on earth these draconian proposals are expected to work in devolved Governments, when health is a devolved matter? For example, Wales is very proud of its social partnership commitments and approach. The Westminster Government’s authoritarian proposals in this Bill stand in direct opposition to the approach Wales has taken. What happens when nations withhold their consent? Railroading through these proposals without proper parliamentary scrutiny and without devolved government consent is a recipe for chaos and conflict. I beg to move.

Baroness Bloomfield of Hinton Waldrist: My Lords, this is a convenient time to have a break.
House resumed. Committee to begin again not before 2.45 pm.

Supply and Appropriation (Anticipation of Adjustments) Bill
 - First Reading

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

SEND and Alternative Provision
 - Statement

The following Statement was made in the House of Commons on Monday 6 March.
“With permission, I will make a Statement on our progress to improve outcomes for children and young people with special educational needs and disabilities or in alternative provision in England. For those with special educational needs and disabilities, many schools and councils are doing a brilliant job. I have met many wonderful teachers who are unbelievably passionate about supporting children to be happier, more confident and better prepared for adulthood. However, too often our children and young people do not get the support they need and their parents have lost trust in the system. Our special educational needs and disabilities and alternative provision Green Paper set out proposals to deliver a more inclusive system, and I give credit to my predecessors, particularly my honourable friend the Member for Colchester, Will Quince, and my right honourable friend the Member for Chelmsford, Vicky Ford, for the work they have put into this area.
I would like to put on record my thanks to the thousands of people who responded to the Green Paper consultation, and to the parents, children and young people who shared their experiences with us. Most people agreed that the experiences and outcomes of children and young people vary significantly around the country. We heard too many stories of families who were frustrated by the system, and who were battling to access specialist education, health or care services, including mental health services. I assure the House that we have taken those contributions and comments on board.
On Thursday, we published the ‘Special Educational Needs and Disabilities and Alternative Provision Improvement Plan’ jointly with my right honourable friend the Secretary of State for Health and Social Care. The plan sets out the next steps that we will take to deliver a more positive experience for children and families. Our mission is threefold. First, we want every child and young person to enjoy their childhood, and feel well prepared for their next step, whether that is into employment, higher education or adult services. Secondly, we know that the system has lost the confidence of parents and carers. We need to regain their trust by improving the support that is ordinarily available. Finally, we have increased the high-needs budget by over 50% in the past four years; we now need to make sure that the funding is being well spent.
We will establish a single national system that delivers for every child and young person with special educational needs and disabilities from birth to age 25. To do that, we will develop new national special educational needs  and disabilities and alternative provision standards, which will cover early years, school, and post-16 provision. The standards will set out what types of support should be available, and who, according to the best possible evidence, should be responsible for making sure that it is. That will include clarifying the types of support that should ordinarily be available in mainstream settings, so that families can have confidence and clarity about how their children’s needs will be met. We will develop new practice guides to support front-line professionals in implementing evidence-based best practice. We will start by building on best practice, including on early language support, autism and mental health and well-being.
To deliver for children and their families locally, we will establish local SEND and AP partnerships. They will support local authorities in producing, together with families, local inclusion plans that are in line with the national standards. Those plans will set out how good-quality alternative provision will be made available. In our new approach to AP, instead of it being a permanent destination, it will be used as an intervention, in order to support those who may feel anxious, or struggle with their behaviour, in mainstream school. This system will mean that more children and young people have their needs met effectively in mainstream settings. That will reduce the reliance on education, health and care plans for accessing support.
Early intervention is crucial. That is why we are training thousands more early years special educational needs co-ordinators and 400 more educational psychologists, who will be able to identify children who need support, and to provide expert advice. We will ensure that children and young people who require an education, health and care plan or specialist provision will get prompt access to the support that they need, within a less adversarial system. We will introduce new standardised EHCPs, and will support local authorities in increasing their use of digital technology, so that the process is easier and quicker for families. By providing a tailored list of settings that are able to meet the needs set out in an EHCP, we will ensure that families can express an informed preference for a placement, so that children and young people can get the right support in the right setting. We will continue to work closely with families and local authorities as we test this proposal.
It is crucial to have the right school places in an area. We will invest £2.6 billion by 2025 in new special and alternative provision places, and in improving provision, including by opening 33 new special free schools; a further 49 are already in the pipeline. We will shortly launch competitions to run these schools.
I am determined to ensure that all children and young people progress to the next stage of life with confidence and optimism, so we will publish guidance on ensuring effective transitions between all stages of education, and an effective transition into employment and adult services. To improve transitions into employment, we are investing in supported internships; we aim to double the capacity of the programme between 2022 and 2025. We will also continue to work with the Department for Work and Pensions on the introduction of the adjustments passport, so that employers know what support young people require.
I know that the whole House will wish to join me in thanking everyone who works so hard to deliver for children and young people with SEND or in alternative provision. Honestly, some of the most inspirational visits that I go on involve meeting them. For our reforms to succeed, we need a strong, confident workforce with robust leadership, and access to specialists where needed. We will deliver a new leadership-level national professional qualification for special educational needs co-ordinators, so that this key part of the workforce receives high-quality, evidence-based training. We are also extending the alternative provision specialist taskforce pilot programme, which co-locates a diverse specialist workforce in alternative provision schools.
Informed by a stronger evidence base, we will take a joint approach to workforce planning with the Department of Health and Social Care, and we will establish a steering group this year to drive this work forward. We will also partner with NHS England to trial new ways of working to better identify and support children with speech, language and communication needs in early years and primary schools. Meeting children’s social, emotional and mental health needs is also a crucial aspect of strong special educational needs provision. Our school and college mental health support teams will be expanded to around 400 operational teams later this year, covering around 35% of pupils in England, reaching around 500 operational teams by 2024.
I began by saying that we had to regain parents’ trust, and I know that part of this means strengthening accountability across the board so that everyone is held to account for supporting children and young people. The new Ofsted and Care Quality Commission area SEND inspection framework now focuses on the experience of children and young people with SEND or in AP. Going forward, Ofsted, the Care Quality Commission and the Department for Education will provide oversight and ongoing monitoring of reforms, including delivery in line with the local inclusion plans. From this autumn, parents will be able to monitor the performance of their local systems through the establishment of local and national inclusion dashboards. Where there are disagreements about an individual’s special educational needs provision or support, we will make it clearer how concerns and complaints should be dealt with by local areas. We will also strengthen the quality of mediation and test different approaches for resolving disputes earlier.
So that all children and young people can access the support they need to fulfil their potential, we must put the system on a stable and sustainable financial footing. We secured £2 billion a year in additional schools funding in the Autumn Statement from this April, of which £400 million has been earmarked for SEND and AP. We are working with local authorities to address deficits through our delivering better value and safety valve programmes. Parents told us that some reforms would need careful consideration, so I am pleased to announce that a £70 million change programme will fund up to nine regional expert partnerships to design and test our reform proposals in collaboration with parents. To get this under way, we are today launching the tender for the programme’s delivery partner.
Oversight of reform will be provided through a new national special educational needs and disabilities and alternative provision implementation board, jointly chaired by myself and the Under-Secretary of State for Health and Social Care, my honourable friend the Member for Lewes, Maria Caulfield, who is the Minister responsible for mental health and the women’s health strategy. Delivering for children and young people is of the utmost importance. My priority is to make sure that every single child and young person can access the support they need to make the most of their lives. I commend this Statement to the House.”

Baroness Twycross: My Lords, I am grateful to the Minister for the Statement. There is much to welcome in this long-awaited SEND improvement plan. Children and young people with special educational needs, as well as those with disabilities, all too often have to battle an unwelcoming and sometimes unsupportive world, including at school. Labour has some concerns, however, which I would be grateful if the Minister could address.
First, as your Lordships might be aware, the Children’s Commissioner has raised concerns that much of the substance of this plan, including the welcome new national standards, is not coming into effect until 2025 or even 2026. Children needing SEND assessments cannot put their lives on hold. Can the Minister reassure the House that this delay will not subject children, in the words of the Children’s Commissioner, to years of a vicious cycle of poor outcomes?
In particular, when will the initial teacher training review conclude? For the new area SEND inspection framework, we are told that timeliness will be assessed. What amount of time will be considered timely to have a SEND assessment initiated and completed? This involves pupils and parents who have spent their school lives waiting for appropriate assessments and subsequent placements, so time really is of the essence for this pupil group. The focus on additional skills in the workforce to improve SEND provision is welcome, as is the commitment to review the initial teacher training and early career frameworks. However, the timeline is not clear. Can the Minister advise this House when the review will be completed?
I note that Speech and Language UK is keen that the review of teacher training should also include how to support children with speech and language challenges, from early years and throughout school. Will this be included?
I would particularly like to highlight paragraph 75 of chapter 2 of the plan, which refers to data on inequalities
“in relation to certain characteristics such as place, gender and race”
and is the only paragraph that refers to gender or race. This is unduly light on detail, given that black children with special educational needs are increasingly likely to be permanently excluded from school for behaviour due to their condition, rather than malicious intent. Can the Minister assure the House of the Government’s commitment to addressing disproportionality?
Looked-after children also face particular issues in accessing SEND provision; this is referred to in the plan. As the Children’s Commissioner also highlighted, there are
“serious gaps in the Plan”.
She continued:
“Much of the Plan assumes that children will have familial support and does not consider how children in the care of the state will be represented and supported”.
References to looked-after children in this plan are limited. Can the Minister provide a timeline for when the work referred to in the plan to ensure that looked-after children get the best provision will be complete?
Finally, the plan sets out the aim of reducing the number of children with education, health and care plans. If this reduction is made through improving support in mainstream schools and getting better support in place early, it would be welcome. But the reduction must not be a means of reducing costs or making it even harder for children and young people to access support, and to access an education, health and care plan if required. How will the newly forming ICBs bring together health and education to support SEND children?
Parents, guardians, carers and, critically, children with special educational needs and disabilities are crying out for a more sustainable solution to the current patchwork of SEND provision. I had hoped this plan would be more ambitious in seeking to provide that. As yet, regrettably, I am still sceptical.

Lord Addington: My Lords, I should first declare my interests: I am president of the British Dyslexia Association and chairman of Microlink, which is an assisted tech company that works in the education sector. I also realised when preparing for this debate that I made my maiden speech almost 35 years ago on special educational needs.
When we look at the Statement, the most important bit is really where it says that:
“we know that the system has lost the confidence of parents and carers. We need to regain their trust by improving the support that is ordinarily available.”
That is the essence of it. We have a system that has got bogged down in legalese, buck-shifting and dodging. With the best of intentions, what was set up under the 2014 Act—I was involved in that, so I take a share of the blame—is not addressing need and is chasing itself around. The big beneficiaries of the education, health and care plans have been lawyers. The appeals procedure has become ridiculous, and I thank the Government for recognising that. There are also other structural changes.
A school is expected to have £6,000 to support a person going through. If you are planning a budget in a school, you actually have a disincentive to identify needs and get help and care through.That money could be far better spent on improving your staff structure to deal with the problems as they come through and on making sure the system can give support, particularly to those with commonly occurring conditions. Therefore, you would actually have something which means people do not go through the legal process of the plan, for the simple reason that a structure would be there to deal with it.
The best way to get high needs, if you have one of the commonly occurring conditions, is not to have them addressed for several years, so you are behind the curve, have not acquired the skills and have therefore got problems. It is also important to remember that, with the education system, you are only there for a fixed period of time. You are on a conveyor belt of acquiring skills to acquire more knowledge to pass exams. It should be more than that, but I am afraid that is the essence of it—and it has become more so of late.
I ask the Minister—I feel that she is a little bit like the poor infantry on this, but there we are, I am still going to shoot at her—if this is coming forward, how are we going to make sure that teachers are properly trained and have the support to intervene? We talk about better training here and about educational psychologists. An educational psychologist said to me in the all-party group on dyslexia, “We usually rely on people having failed for X number of years before we intervene.” Think about it: that is guaranteeing more failure. Are we going to get to something with better assessment and planning? There are tools in planning and screening tools available that can help with identification, but people need to train to be able to interpret results. Level 3 is not enough; they need to be at level 5 or level 7 to make these assessments. Are we going to passport this identification forward so that help can be accessed more quickly? That would be a huge change.
In the Commons, a great deal of attention was paid to special schools. I think 83 schools were promised—some now and some planned in future. Special schools, hopefully, should be for high-need pupils. They should not be for ordinary problems, or for people waiting to acquire high needs by failing. This was very common and many of the Government’s own supporters raised this. If you have got these special schools, how are you going to make sure people get the right one? Are you going to make sure that people can travel and that support—or indeed boarding arrangements—are there? Are you integrating them? How are you going to overcome certain education authorities or others saying, “No, we won’t send them there”—which is a very common thing in these processes when people are fighting forward. How will we start to address that? We need to know how the Government are going to use the private sector, which has been used in the past. These are questions which need to be answered.
I appreciate that the Government have started a process. I feel that there was enough information out there to have missed out some of this assessment, or perhaps to have got it done far more quickly. However, I have the Government to thank. They said we would be talking about this in September, but I have won a £5 bet because it is happening in March. We have got to get a little bit more speed and we know this. It has been a long time coming; many of these problems have already been established and everybody knows about them. I hope that the Minister can give us some guidance here, because we are not dealing with a new thing. We do not need to spend time looking at it. I hope the Government can go to the vast body of knowledge they have, give us a little bit more speed and tell us how they are going to meet these very well-established problems.

Baroness Barran: I thank both the noble Baroness, Lady Twycross, and the noble Lord, Lord Addington, for welcoming our announcement last week and I will do my best to address some of the points that they raised. I think I heard a shared ambition across the House for children with special educational needs. Last week, we set out our ambition to make sure that all children, but particularly these children, fulfil their potential, to rebuild the parental trust the noble Lord, Lord Addington, referred to, which has been eroded, and to provide financial sustainability.
Much of the questioning focused on timeliness and timing, and I will endeavour to reassure the House about the speed of delivery. But, as we discussed with your Lordships in relation to the children’s social care reforms, the balance between ambition and the quality of implementation is incredibly sensitive and delicate, and extremely important. This is not the first time that a Government have tried to improve support for children with special educational needs and disabilities, particularly those in the care of the local authority. If this were easy, Governments would have cracked it previously. But we are determined to make this work, in terms of both the vision and the quality of implementation.
As your Lordships know, we will establish a single national system that will, importantly, focus on children from minority communities and children in the care of the local authority. We will have the systems of accountability, clarity and transparency for parents, which means that we very much hope and believe that that will work better than the system we have today and will achieve good outcomes for those children.
We are laser focused on the early identification of educational needs and ensuring that high-quality support is in place, without the need for a diagnosis or a label. Crucial within that is the work happening with the workforce, some of which has already started. The first cohort of early years SENCOs have completed their training, and they will re-enter the workforce. The House is aware that we funded training for up to 5,000 SENCOs in early years, which is obviously not the only place we should have them, but it is an absolutely critical place. We have already funded additional educational psychologists and have announced more funding for an additional 400, all of whom are critical to delivering this plan.
Similarly, when we recently reviewed initial teacher training, we made adjustments to the training for early career teachers so that there is a focus in their courses on how you make classroom adjustments and how you can be truly inclusive in your classroom for children with additional needs. Obviously, as we said in the Statement, that work continues at pace this year to try to identify whether other aspects within the mainstream workforce can support this.
Last night, I met the chair of a multi-academy trust, and I said, “I’ve got the Statement tomorrow; tell me what you do to support your children with special educational needs and disabilities in your school”. The answer was having twice as many teaching staff per pupil and incredibly regular communication with home. Not every school or trust will be in a position to do that, but that approach of putting children, resource  and communication with parents first struck me as perhaps something that we aspire to in this area. The national standards will also place much greater emphasis on the role that mainstream settings will play, but of course we want to be sure that children and young people with special educational needs who need an education, health and care plan—and their parents—have a less adversarial system.
Therefore, we are adding resources to make sure that we have real clarity of need, in terms of speed. We have been and are adding resource for clarity of support for children and, critically, we are adding capacity in the availability of new schools. The House has regularly talked about the fact that some children are sent very far from home, which is clearly far from ideal. For the record, we have delivered 92 new special schools and 49 are in the pipeline, seven of which will open in September. Last week, we announced a further 33 local authority areas that will get a new special school. Capacity is absolutely going into the sector.

Baroness Wyld: My Lords, I welcome the plan and declare my interests as a non-executive board member at Ofsted and a member of the court of the University of Newcastle upon Tyne. I want to ask about an important part of the plan, which is transition to adult services, employment or higher education, which the Government have set out clearly as an ambition. Can my noble friend say a little about how the Government will assess whether things are getting better and whether the experience of when children are often at their most vulnerable is improving? What will be the measurement for that?

Baroness Barran: My noble friend will have seen from the plan that, particularly in relation to employment, we are investing £18 million to double the capacity of the supported internships programme. We will work with the Department for Work and Pensions on the adjustment passport so that young people do not have to retell their story endlessly and that employers are clear about what support they need. On accountability, together with parents, local authorities and health partners, we will develop local inclusion plans and local inclusion dashboards—I appreciate that that sounds slightly Sir Humphrey-ish, if that is a term. Importantly, parents, providers and local authorities will be able to track and see the impact of their plans, to compare their performance to that of other local authorities, and to understand how they can build, improve and learn. We are committed to improving the quality of data that we use so that everyone in the sector, who are all doing their absolute best to deliver for those young people, can work as effectively as possible.

Baroness Blower: My Lords, I am sure that no one would want to understate the importance of making sure that we do everything we can for children and young people with special educational needs and disabilities, and their families, but I believe that a lot of teachers have lost trust and confidence in the system, partly because of the £6,000 question but also because it is quite opaque in some cases, so a new approach is helpful.
It is good that the Statement talked about reducing the reliance on education, health and care plans, so that there can be access to what is ordinarily available in mainstream classrooms. Is the Minister aware that there are some difficulties for children in year 6 in accessing a place in a secondary school, because that school is able to say that it cannot meet the needs of that plan? Frankly, it is terrible that children are made to feel as though they are not wanted. I would be pleased if the Minister were able to say something about that.
I do not think that there is complete confidence in the profession about ITT, so I hope that we will continue to look at that. Finally, if we are going to rely continuously on teaching assistants, who do a fantastic job, we need to have regard not just to their training but to their level of remuneration.

Baroness Barran: On the noble Baroness’s first point about teachers having lost confidence in the system, I hope that some of the work that we are doing will help rebuild that. As she knows, the national standards will set much clearer definitions of need in particular, rather than necessarily diagnosis, so that there is clarity and consistency across schools and local authority areas.
We are also producing a number of practice guides for teachers and schools, which we hope will be really helpful. They focus on what are perhaps three of the most prevalent and important areas—autism, speech and language, and mental health and well-being—which, as the noble Baroness knows very well, are all extremely important issues. We are establishing the nine regional expert partnerships to create this co-operation between parents, local authorities, schools and health, ensuring that whatever we are doing is tested in practice to make sure that it works in the interests of both the child and the workforce.
I imagine that the question on the admissions issue is, in part, an extension of the first question on confidence. The other thing we see which is really different in different parts of the country is the degree of co-operation between real specialists. In some places, there are providers of special schools with huge expertise, which are in a position to work very collaboratively with their local mainstream schools, but that is less the case in other places. In the areas of alternative provision, behaviour management and support, and special educational needs and disabilities, that collaboration and co-operation is felt to be a really productive and rich place to start to ensure that every child can get to the school they want to go to.

Bishop of St Albans: My Lords, I too thank His Majesty’s Government for the improvement plan. I commend what they are doing to try to get a much more integrated approach and some of the resources mentioned in the plan. However, I share the concern raised by the noble Baroness, Lady Twycross, about implementation. The stories I pick up from grass-roots situations in Bedfordshire and Hertfordshire, where I serve, show that there are still some very serious problems, and some children are now being failed immediately.
I will ask a couple of questions. First, having a specialised workforce in place will be crucial, so can the Minister tell us what support they expect to receive from the DHSC, especially as such a great strain is placed on the health and social care workforce? The second question is about diagnosis, so that children can have access to the support mentioned in the content of the plan. What support is the DHSC able to provide to CAMHS to ensure that there is support to deliver this plan?

Baroness Barran: As the right reverend Prelate said, that co-operation between health, education and children’s social care is absolutely critical, so that they are closely joined together. We will bring more clarity and clearer accountability through new inspections conducted jointly by Ofsted and the CQC, which will focus very much on outcomes and experiences for children, young people and their families. In turn, that will feed into and reflect the local inclusion plans, where health is a critical partner.
On issues around the mental health workforce, the right reverend Prelate will be aware that we are doing a lot of work to ensure that we have direct support in schools, so that, wherever possible, mental health issues do not need to escalate to CAMHS.

Baroness Brinton: My Lords, I declare my interests as a vice-president of the Local Government Association and as one of the infantry working on the Children and Families Bill, as were other Members of your Lordships’ House. We felt that that was a ground-breaking change to the system, but one of the fundamental reasons it has failed is because the funding, both for children and for the assessment of children and young people, was not ring-fenced, causing real problems for both local authorities and schools. So will the Minister ensure that there will be ring-fencing for this funding, because it is not fair for local authorities to have to find it from other resources, when other resources are clearly being so pressured?
I also want to follow on from the question asked by the right reverend Prelate the Bishop of St Albans and focus on those children who will need an EHCP, especially the health element. For those with high needs in terms of physical disabilities, the proposal is to move much more to special schools, but for some young people special schools do not actually help their academic achievements because the standards are set so low—so will that be addressed in this or in relationships with schools?
Finally, those who were there for debates on the Children and Families Bill will know that there was ground-breaking statutory guidance for support for children in school with medical conditions. That has now been watered down. Will it be strengthened to ensure that every child with a serious medical condition gets the support that they need to go on school trips and take part in everyday activities?

Baroness Barran: In relation to funding, I do not fully recognise the picture that the noble Baroness paints. Revenue funding in this area is up 50% since 2019, and we have committed £2.6 billion in high-needs capital funding to build, as I have already mentioned, 92 new special schools that are being delivered, with 49 in the pipeline and 33 on their way.
For children with physical disabilities at a high level, the aspiration is absolutely clear—we need to get the right place for every child, including those children. Therefore, if it is possible, we will include those children in the mainstream, as that clearly is the aspiration and direction of our work. I shall need to revert to the noble Baroness, as she has raised this issue with me before and my memory fails me on the current status of her final point.

Lord Young of Cookham: My Lords, like others I welcome the provisions in the Statement, which will provide a better deal for parents and children with special needs, and I welcome the interaction between Ministers and noble Lords during the consultation. On workforce training, does my noble friend accept that the new NPQ will need significant adjustment, if it is going to meet the needs of the SENCOs envisaged in the Statement? The current NASENCO course that it replaces is for 600 hours. Does my noble friend agree that the strength of those courses needs to be carried through into the proposed NPQ?
I welcome the national standard as it will remove the postcode lottery. Can my noble friend assure me that the Treasury will have nothing to do with those national standards as a means of controlling costs, that costs will be based on the needs of children and that there will be the resources behind them to provide the finances for the EHCPs?

Baroness Barran: In relation to my noble friend’s first question, of course the new NPQ will definitely learn from the NASENCO qualification, but its focus, to put it in simple terms, will be very practical and on the classroom. It tries to address the practical requirements of teachers in the classroom, and it will have less of the academic and research focus that has traditionally been associated with the NASENCO.
In relation to not letting the Treasury anywhere near that, clearly, I would have to reserve judgment—but I hear the spirit of my noble friend’s question. The important thing is that the standards are being developed in collaboration with families, local authorities, health providers and schools. There are tensions pulling in different directions, but there is a shared aspiration for the earliest possible intervention, and the earlier that we can intervene the less likely it is that many children will need to go into specialist provision and need to have an EHCP. Therefore, absolutely front and centre, the most important thing is that that is the right outcome for that child, but the secondary helpful benefit is that it then frees up funding, as my noble friend suggests, for those children who need an EHCP.

Lord Watson of Invergowrie: My Lords, there are many welcome aspects of the Statement, but it seems the Government still have not grasped the urgency of the situation surrounding children with special educational needs and disabilities. A SEND pupil in year 7 when the review was launched in 2019 will have left school by the time the reforms are implemented—if indeed they are fully implemented—by 2026. That means, as the right reverend Prelate said, that a child being failed now will continue to be failed, which is just unacceptable.
I have two questions for the Minister on alternative provision, and they go to moral leadership from the Government and from senior practitioners. Will the reforms force mainstream schools to accept vulnerable pupils presented to them? Will those reforms force mainstream schools to pass on funding for children that they exclude to alternative provision? Because, at the moment, neither of those are guaranteed.

Baroness Barran: I really do not accept the premise of the noble Lord’s first statement. I am sure he would not want us to implement everything tomorrow and then find that it is not having the impact we want. We live in a world where we have to make sure that this works in practice; hence the nine regional expert partnerships where we will be testing everything. As I already mentioned, we have already made reforms in terms of teacher training; we have already increased our expenditure by 50% since 2019; we have already massively increased the capital budget and delivered more places; we have already started to increase the number of educational psychologists; and we are already delivering qualified SENCOs for early years pupils. So, there is a great deal happening that will help that year 7 child before they leave school, and I hope the noble Lord accepts that.
As for forcing children into mainstream, and forcing the funding to follow them, I just think it is not the approach that we are taking. It is not that we do not take this seriously or that we do not have grave concerns about children who are excluded from school and never return: those are key metrics that we will be tracking, but we need to work with people and make sure that we deliver for those children. As always, we will be looking at the areas that are doing this brilliantly today, learning from them and working with areas that have perhaps not yet reached that level of practice and supporting them to deliver for those children. I share the noble Lord’s concerns about those very children.

Baroness Garden of Frognal: My Lords, a lot of the Statement is welcome, but it does seem to be jam tomorrow. I have two questions. The first is that children with special educational needs learn differently: what efforts are being made to ensure that their teachers understand that while they do not have to work harder, they do have to work more smartly to understand the different ways in which SEND pupils learn? Secondly, Scope has found that SEND pupils are twice as likely to be unemployed as non-disabled people, so what are the Government doing to give young people with SEND the skills and opportunities to enable them to be employed?

Baroness Barran: The Government absolutely recognise the point the noble Baroness raises. We are already providing professional development focused on special educational needs and disabilities; we have online training; we run live webinars; we offer peer mentoring for school and college staff through our universal services programme; and we aim to reach at least 70% of schools and FE colleges each year until 2025, while also expanding the assistive technology pilot, which is expanding training to increase staff confidence in using assistive technology. In my response  to the noble Baroness, Lady Wyld, I touched on some of the measures that we are taking to support people with disabilities and additional needs into the workforce.

Lord Bellingham: My Lords, I too warmly welcome the White Paper today, particularly the new national standards plans. The Minister is aware that very often EHCPs and indeed tribunals get badly delayed because of a shortage of available educational psychologists. I looked at page 52 of the White Paper, and the new money for training educational psychologists is very welcome, but can she give some indication to the House as to the actual numbers of new educational psychologists we will see?

Baroness Barran: I thank my noble friend. We are anticipating an additional 400 educational psychologists from the funding that we have just announced.

Baroness Bennett of Manor Castle: My Lords, I am going to do something unusual: agree with the point in the Statement about providers doing a brilliant job. I say that in reference to a visit I made, with the Learn with the Lords scheme, to the North West Kent Alternative Provision Service in Gravesend, which is an absolutely amazing institution; I would commend to all noble Lords the opportunity to visit an institution like that. It was the first time that Learn with the Lords has ever visited an alternative provision site and it is well worth praising.
I declare my position as a vice-president of the Local Government Association. I have two quick questions. First, there is concern that the £70 million of funding for implementation will be inadequate; will this be subject to regular review with the potential for further inputs, if it proves insufficient?
Secondly, I reflect on a meeting I had this week with the disabled Green groups. Pupils often need transport to access special schools and alternative provision; I know there is a real issue about the quality and safety of provision in Leicester at the moment, and I think that may be a broader problem around the country. What are the Government doing to ensure that there is enough transport so that pupils can get safely and appropriately to this provision?

Baroness Barran: With regard to the noble Baroness’s first question, we have obviously done some pretty careful costings to reach our figure of £70 million but, equally, there is a massive commitment from the Government to deliver on this. The noble Baroness asked if we would keep this under review; clearly, we will do so.
In relation to her question regarding transport, that is very much part of thinking about a local inclusion plan and making sure that it really thinks through the experience of the child or young person and their families, and what is practical, realistic and safe for them to access the education that they need.
Sitting suspended.

Strikes (Minimum Service Levels) Bill
 - Committee (1st Day) (Continued)

The Schedule
  

Debate on Amendment 3 resumed.

Lord Allan of Hallam: My Lords, I rise to support Amendments 3 and 4 in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady. First, looking at Amendment 3, which seeks to exclude health services altogether, I think the key question remains: who wants this legislation? As the noble Lord, Lord Balfe, who is not in his place, asked in relation to Amendment 1: who is asking for this power that the Government are legislating to grant them? We have the Health Minister in the Minister’s place. I hope he can inform the Committee which bodies within the National Health Service have been knocking on his door, asking to be given the powers that are set out in this legislation.
The noble Baroness, Lady O’Grady, quoted to us from the note that has been sent out by NHS Providers, which represents all the trusts in England, and it could not be clearer that not only is the legislation unwanted but it sees it as actively counterproductive to its efforts to work with the staff that it employs in order to deliver the service both on a day-to-day basis and during industrial action. We seem to be in a situation where the employers are saying that they do not want this, and the employees certainly do not want it, yet the Government are determined to stick their oar in and make a difficult situation worse. This potentially has significant short-term and long-term disadvantages that will be to the detriment of the health service.
I am sure the Government will say that this is about delivering health services to people in the United Kingdom, and we would agree that it is about that. The question is: what framework means that we are most likely to get those health services delivered effectively? It is one in which employers and employees are working hand in hand to deliver health services to people. It is not one in which we create artificial tensions between employers and employees, and it is not one in which we pass legislation and seek to impose measures that will increase those tensions and make things worse.
As well as NHS Providers, I have been contacted by a consultant who works in the health service, who said to me:
“Instead of focusing on minimum service levels on striking days, the Government should be taking action to ensure the NHS is safely staffed 365 days a year.”
We will come to amendments later on where we will talk specifically about that, but that is the prize—a 365-day-a-year service. That depends, crucially, on staff morale, staff recruitment—we all know that we have huge gaps right across the health service—and staff retention, which means making them feel valued. It certainly does not mean press-ganging them into working at times when they have exercised their legitimate right to withhold their labour because of an industrial dispute.
The consultant goes on to say:
“Instead of threatening workers and unions with heavy-handed tactics that put workers’ right to strike at risk, this means ensuring that there is meaningful engagement on pay and a commitment to  enshrining and funding safe staffing. This would help stem the tide of doctors leaving the NHS every year for better jobs at home and abroad, in the best interests of the NHS and patient care.”
I asked the Minister this question at Second Reading; I will ask it again: is there anything in this legislation that the Minister can say, hand on heart, will help him and his department recruit more staff to the NHS and stem that flow away from the service?
On the specific consultations that the Government have put out, we now have one on the ambulance service; again, I have been talking to people who work in that service. First, I have to say that the consultation is one of those classics: if you ask people, “Do you want more or less service?”, who votes for less service? When the Government ask, “Do you want category 1 and category 2 or just category 1?”, I think we can reasonably predict the answer. But the consultation does not ask, “Do you want the Government to come to a fair settlement with ambulance workers so that you can have categories 1 and 2 all year round, delivered to a level of performance that would be a significant improvement on today’s level?” I think the Government would freely admit that they are failing on both categories today; again, we have to ask whether anything in this legislation will improve the service delivered by the ambulance service. There is nothing there.
The ambulance service points out that, if you include categories 1 and 2, that covers pretty much the entire service. It is pretty much business as usual that the Government are consulting on. In essence, they are asking, “Should we prevent ambulance workers going on strike?” That is the net effect of saying that the minimum service level is the entire service. Again, I think that there is some confusion there.
The ambulance service also points out that the Government are, in part, driven by the fact that they are failing to meet their targets. Now they are consulting on what should be in categories 1 and 2, so we may end up consulting on a minimum service that will itself have to change as the Government change their definition of what constitutes categories 1 and 2 because of the pressures on the ambulance service; for example, there are suggestions that some people may no longer be categorised as category 2 until a further assessment of their needs has been made. Again, we are consulting on something that may move as the consultation progresses. We have a problem both with the generality of the health service being included and around the specifics on the ambulance service.
I want to raise one further issue, which relates to the speed with which the legislation has been introduced. I am not a civil claims lawyer but I know that their job is to pursue all possible angles in favour of their clients. We also know that the NHS is already paying out more than £2 billion a year in compensation claims, including claims made for failures to deliver on the agreed levels of service for ambulances and emergency care.
This legislation could change that landscape in several ways. First, if the minimum service level has been defined yet there is still a failure, there will potentially be a claim against the Government who set that minimum service level. If I am a claimant lawyer,  I am going to go for every angle; one of the angles is to say, “The minimum service level was insufficient so I am going to try to drag the Government into the case”.
If the minimum service level was set but the work notices were insufficient, I would go after the trust and try to bring it into the case, saying that the only reason my claimant suffered was because the hospital trust failed to deliver sufficient work notices. Even the existence of this law could fundamentally change the landscape for those claims. If you fail to exercise that law, which the Government keep saying is a measure of last resort, claims could come in to the effect, “You had a law for minimum service. I suffered at the hands of the NHS because there was no minimum service level in place, but the Government could have done something because the legislation was there”. I see the noble Baroness, Lady Chakrabarti, nodding, which is encouraging given her legal experience.
I hope that the Minister can say in response, “We’ve worked all this out, don’t worry. When we drafted the legislation, we figured out the effect of having law on minimum service levels, questions around work notices of minimum service levels and how the responsibility of the Government, the trust and others would factor into the landscape of compensation claims once all this has occurred.” I fear that the Minister may not have all that to hand and, frankly, that it has not been done. This is another example of what happens when you rush legislation. There are all kinds of consequences to this Bill because it was not introduced in a thoughtful, careful manner but to fill a government communications grid: “We have strikes; we want to show that we are doing something for the public; we will bring this in.” The health service element creates more questions than answers. I appreciate that the Labour Front Bench has tabled amendments that would remove that.
Amendment 4, which lists the different professions that might be expected to be included, is also interesting. The noble Baroness, Lady Chakrabarti, mentioned earlier that we need foreseeability. The fact that there is no foreseeability in a phrase such “health services” makes it hard for any of us, and certainly for those professions, to understand whether they are in or out. I suspect that the Government will say that where the Opposition would exclude a list of professions, they would include it. Even that would be better than what we have today. If they do intend to include physiotherapists, pharmacists and other workers in the legislation, they should list them in the Bill.
It is not acceptable to use a phrase such as “health services”, which does not inform those hard-working professionals. There is not one profession on that list that does not have a staff shortage right now. We have this list of professionals, but we do not even have the decency to say to them in the legislation, “By the way, at some point you may be subject to minimum service levels being imposed and work notices being sent to you as an individual professional in that job.” We leave it open. We leave it for them to guess.
Both amendments make sense, in that they test the Government’s rationale for including health services and they have thought through the implications for health services in the longer term and try to get more  predictability and certainty. If a particular group of professionals are to be included, let us see them in the Bill rather than just saying, “Well, ambulance workers, yes, they’re clear; but for the rest, maybe, maybe not.” That is not good enough when we are talking about people’s essential rights and things which may affect them personally, as they will be press-ganged into coming to work against their wishes at some unknown future date.

Baroness Noakes: My Lords, the noble Lord, Lord Allan, says “Who asks for this Bill?” He then tries to portray that as a binary thing—either workers and unions, or employers, claiming that neither of those groups wants it. However, he and others who oppose this Bill are missing out on a crucial third group: the users of services. This is the Government acting on behalf of the users of services generally. By taking the power to create minimum service levels, they are giving themselves the power to act for the users of services if the need ever arises. Broad terms are used to allow the detailed minimum service levels to be devised within that. Obviously, when regulations are produced they must be very precise, because they will affect whether individual workers will have to comply with work notices.
I should also say that no employer is ever forced under this legislation to issue a work notice; it remains entirely voluntary. Noble Lords should start to see the Bill in a much broader sense, rather than that of trying to create yet more disharmony between employers and their workers.

Bishop of London: My Lords, I rise to speak to this group of amendments on the inclusion of health services in the Bill. I am sorry that I have not been able to speak before. I declare my interests as set out in the register.
I have been a union member. I joined as a nurse—and as an NHS manager and a civil servant in the Department of Health—because I wanted protection. The relationship with unions was critical; it was the way in which we improved patient care. One of my overall concerns about the Bill is that it has the potential to break down the relationship which is so vital for patient care, as the noble Baroness, Lady Noakes, said.
I am grateful to the Royal College of Nursing, which has helped me in considering the Bill. I am sure that it will not surprise noble Lords to know that it does not support the Bill, for what I see as some good reasons: not least because it curtails the freedom to participate in what otherwise is lawful action.
My right reverend friend the Bishop of Manchester regrets that he cannot be here, but he shares my concern that far too much power is given to the Secretary of State in what we have already heard is only a skeleton Bill, and that there is a complete lack of clarity about how it could be used. It is open to abuse. I am surprised that, as many others have said, the detailed policy that becomes legislation is not there. I am concerned that those who work in the health service probably cannot see whether they are in there or not.
I support the noble Lord, Lord Allan, and the noble Baroness, Lady Chakrabarti, regarding the definition of health services. It is such a wide definition that leaves it to the imagination whether you are covered by it or not. I do not believe that this is for the professional groups, but for the individual. I am also very conscious that we have talked a lot about trade unions, but the health service is about individual nurses, doctors, health visitors and midwives who seek to do their best for patients. One of my great concerns is that the Bill could lead to the sacking of staff for taking what otherwise would be seen as lawful strike action. They are the nurses, midwives and doctors whom we can ill afford to lose.
As has already been said, the reality is that those who work in the NHS do not take strike action easily. They choose to do it only because they are frustrated that their voices are not being heard when they express their concerns about patient standards, workforce levels, recruitment and retention, and the role that fair pay plays in this. In September, the Nuffield Trust reported that 40,000 nurses left the profession last year, and we are still waiting to see the arrival of the workforce plan. Meanwhile, healthcare workers are spread more thinly, at the expense of their mental health and well-being.
It is amazing that the legislation talks about minimum service levels, yet this Government resist setting minimum standards for nursing and other health professions. If we want to ensure standards of patient care throughout the 365 days of the year, the focus should be not on banning strikes but on getting in place minimum staffing levels to ensure that quality patient care is given. For the Government to fire anyone using strike action when they try to raise a concern about the conditions set by the Government is ridiculous and undermines the dedication of staff in the NHS.
I have a question. Rather than passing the Bill, should the Government not be spending more time listening to and addressing the concerns of healthcare staff, to hear the solutions they believe they have to ensure that patients get the care that they require?
Finally, the other concern that has been raised is around trust and staff morale. The reason staff in the health service are striking partly relates to morale, and also to trust. I am concerned that the Bill will undermine the trust that is there and further undermine morale. We saw something of that trust undermined when this Government were seeking for healthcare professionals to be double-vaccinated against Covid. Although I am a great supporter of vaccination, we were heading for disaster. I am concerned that the Bill undermines trust and morale. What risk assessment has been made of the effect of passing this Bill on staffing levels of the NHS in particular?

Lord Hendy: My Lords, I have the honour to serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. As noble Lords will know, in our 27th report we dealt with this particular Bill.
There is an issue which arises in relation to these two amendments. I would like to read to your Lordships just three paragraphs from our report. Paragraph 17 says that
“the Government are ‘of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation’. But the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike.”
Paragraph 19 says:
“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”
At paragraph 23, in conclusion on this aspect—there are other aspects to be dealt with—we say:
“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”
I looked at the consultation paper that emerged in relation to health services, which has already been remarked upon. It is confined simply to the ambulance service. I looked to see what the criteria for setting minimum service levels might be. I can see that, right at the end, there is half a page suggesting to consultees that they might wish to specify category 1 and/or category 2, and that in respect of one service they might be favourable to a percentage of the ambulance service being carried out. But there is nothing, as far as I can see—the Minister will correct me if I am wrong—to indicate what the metrics are. What are the factors to be taken into account in setting minimum service levels?
This is not just for the ambulance service. As has already been remarked, in Amendment 4, my noble friends set out a whole list of potential categories of worker in the health service—and very diverse it is too. What is it that the Government have got in mind to formulate the way in which the minimum service levels will be articulated in respect of each of these trades, professions and subcategories of worker? That is my question to the noble Lord.

Lord Prentis of Leeds: My Lords, I support Amendments 3 and 4 in the names of my noble friends Lord Collins and Lady O’Grady. Noble Lords will know that I have already expressed my opposition to the Bill and, in particular, my opposition to skeleton legislation such as this, which gives Ministers unfettered powers to amend, repeal or revoke, calling into question parliamentary scrutiny, which matters.
Amendments 3 and 4 relate to health and would remove health services from the Bill. Quite simply, this Bill has the potential to wreck the partnership working that has been the bedrock of industrial relations in our NHS over 70 years. The workforce is 75% women, as we have heard, and 29% ethnic minority. In relation to health, the Bill is rushed. It is deficient to its core. It weakens protections against unfair dismissal. It flies in the face of ILO labour standards, and it could violate the Human Rights Act. Much of the Government’s argument rests on the ambulance service, which has just been mentioned.
In November, the Government praised the NHS, stating that important factors exist to mitigate the impact of industrial action in that sector. It was put forward as a really good way of working when it comes to industrial action. But by January, the same Government said that ambulance workers had refused to provide a national safety net. What an about-face in only six weeks. Why did it happen? What had been discovered that was not there before? Nothing could be further from the truth. Unions and staff representatives reach direct agreement with their employers. They do it before any action is taken, not on the day. It includes call volumes, rapid mechanisms to bring staff in if needed and constant contact with management. They reflect local circumstances. I do not know how many people have seen the folders of procedures—I would love to give a copy to the Minister—but they are not just two or three pieces of paper; they are whole folders of procedures. The Minister said that a number of ambulance trusts stated that they were not getting agreements to enable them to be satisfied. Where are those trusts? We asked employers which trusts are not happy, and said that we would talk to them, and we were told in no uncertain terms that they did not know where the information had come from.
Looking at, say, the ambulance service, and at whether it needs this additional restriction on taking industrial action, I am not too certain why this should be the case. The Government criticised ambulance workers for guaranteeing only category 1 999 calls. This is misleading. Calls in category 2 are answered if the call has been put through by a clinician, and usually only half of category 2 calls are an emergency. The Government have run two successful pilots where category 2 calls have been directed to alternative services rather than being dealt with by the 999 system. So why does this Bill call for 100% answering of 999 calls—the so-called minimum standard—when in 2022 the figure answered on a normal day was 77% and in 2017 was only 76%?
I turn to the evidence of NHS Providers, which has already been mentioned. I state very clearly that NHS Providers represents all the NHS trusts. It represents the ambulance trusts and mental health trusts—it is the employers’ organisation. If any organisation were to be saying that we needed minimum standards, clearly this Government would be listening to it. I shall read out one or two of the many things that NHS Providers is saying:
“NHS Providers has a number of concerns about this legislation. It will not resolve or address the fundamental issues underpinning the current industrial action, and risks worsening current and future industrial relations, and potentially local relationships between trusts as employers and their staff … Existing legislation and mechanisms are already in place to ensure ‘life and limb’ cover during periods of strike action, with trusts also having the option to invoke a section 240 under existing legislation.”
Why bring health into this Bill? NHS Providers  continues:
“Emergency cover provisions have been in place for all recent strike action in the NHS, drawn up by each trust through local planning processes and derogation negotiations with unions, drawing on local experience and expertise. This gives the ability to make decisions based on a detailed understanding of the day-to-day operational needs of their services.”
It is all in place—in fact, it is better than all in place. It is a far better system of local people talking to local employers, looking at the local circumstances, and all being of one opinion: that there must be minimum standards to ensure the safety of our communities if industrial action is ever taken. How often is it taken? What we are seeing now is something that we have not seen in many decades—indeed, in our lifetimes.
It is not just NHS Providers or myself saying that the Bill is going too far, that there is no need for it, and that it is vindictive. As has been mentioned today in this Chamber, the report by the Regulatory Policy Committee was absolutely damning, saying that the Bill is not fit for purpose or backed up by evidence, with no assessment of how the Bill could make strikes worse, and that it is full of assumptions.
Something else that has been mentioned—put it all together and you see what kind of picture you get of what has been proposed and the opposition to it—is the report by the Joint Committee on Human Rights. I will not go into the detail of it, but it concludes:
“The Government needs to think again and come back with legislation that better respects the protections guaranteed by the European Convention on Human Rights.”
I put it to the Government and the Minister that, given the weight of all the evidence that has been put to them in good faith, showing them the whole picture as we know it, it is time for them to think again, especially on the health service, which is delivering so much under so much pressure. The health service does not deserve restrictions of this type imposed on it.

Baroness Chakrabarti: My Lords, it is with a heavy heart that I welcome the Minister—the noble Lord, Lord Markham—to this Committee. That heavy heart is for a few reasons. The first is that in his time in your Lordships’ House I have found him to be one of the kindest and least combative members of the Government, so I can only imagine what he feels about applying this kind of approach to industrial relations in the health service.
That takes me to my second real regret about this aspect of the Bill. Of course I find the Bill objectionable per se, but I find it particularly distasteful in relation to health services. That is because these people have been the heroes of the pandemic. I am personally embarrassed that it feels like a very short time ago that I was standing with my neighbours, practically in tears, bashing pots and pans in gratitude to these people. We in this House are now talking about imposing minimum service levels on them, as if that is necessary.
What is more, some categories of these health workers are highly regulated and ethical professionals. Even outside pandemic circumstances, we all put our lives and those of our loved ones in their hands. We trust them to do things that we do not understand: that is the level of trust that we have in these people. It is, in the words of the right reverend Prelate, a terrible statement of a lack of trust—it undermines a sacred trust—for politicians to be inflicting this on these highly ethical health workers. I really wonder, if we were to have a focus group or a poll of the public, and measure the trust index of different categories of  people in public life and in different professions, where nurses, doctors and other health workers would sit, compared to—dare I say it—lawyers and politicians.
That takes me to a further regret, which was put so well by the noble Lord, Lord Allan of Hallam, who, if he is not careful, is going to be competing with his noble friend Lord Paddick for who is the most legally literate non-lawyer. He hit on a very important point that is specific to health services: the litigious possibilities. In relation to the Bill more generally, we have already touched on the dangers of litigation in relation to whether the Secretary of State chooses to make regulations in an area or not. Some people might seek to challenge the making of regulations but, of course, there is also the possibility of judicial review by other groups of the Secretary of State not making regulations. This will come whenever something is effectively delegated to executive discretion. That executive discretion can be subject to judicial review and litigation. Governments of both stripes get annoyed with judicial review, but there it is: it is part of our rule-of-law system in a constitutional democracy.
In addition to that potential for litigation, we then have the negligence lawyers. As the noble Lord, Lord Allan of Hallam, put it so well, we now have oceans of possibility of claims made against particular employers for potentially not issuing these notices in circumstances in which they did not think it was necessary. To be in hospital is to be sick, and there will sometimes be bad outcomes, and we now have this new possibility for litigation about the extent to which issuing or not issuing work notices may have contributed to your loved one’s demise. That needs to be considered.
The Minister was not here during debate on the earlier group, so to help him out I say that he could borrow the script of his noble friend Lord Callanan. In relation to some points, he said, “I can’t explain this point to you because, of course, it is legal advice that I have taken; I’ve taken it very seriously but I can’t tell you what’s in the legal advice.”
When other points were put to the ever-resilient Minister, the noble Lord, Lord Callanan, he said, “The reason why this is in and that is out is a political decision”. It is either legal advice, which he will not comment on, or a political decision as to why these categories are so broad—or why there are six of them and not seven. If we wanted more, he was saying, the Government would give us more, but they would not give us fewer. The point is not about the length of this list of services but about the precision and rationale that went into making these choices.
The noble Baroness, Lady Noakes, says that it is all very well talking about the unions on the one hand and employers on the other, but I think she said that the Government are taking powers for themselves to act on behalf of service users. There are two points there: one is that when we talk about as many people as we are in the context of providers of health services, that is a lot and they are service users and providers at the same time. But the other, which was the crucial element in her remarks, is that the Government are taking powers for themselves. They should not be doing so. If legislation is truly necessary in relation to health services or anybody else, it should be for Parliament  to have a Bill before it that is specific enough to provide foreseeability, in accordance with the law, and therefore comply with convention rights.
In the end, I have to hand it to the right reverend Prelate: the issue is about health services being too broad. As my noble friend Lady O’Grady of Upper Holloway asked, will it cover Amazon? I look forward to the answer on that because it would be pretty sweeping and concerning if it did. “Health services” is broad; it is not precise as a concept. My real sadness about health services being attacked in this way is the issue of trust. The Government should be building trust, post pandemic most of all, between people and vital healthcare workers and not undermining it.

Lord Markham: I thank the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, for their amendments. I also thank the noble Baroness, Lady Chakrabarti, for her kind words.
Amendments 3 and 4 seek to remove the health sector and health services from being within scope of having minimum service levels implemented. As my noble friend Lord Callanan said earlier, the key sectors outlined in the Bill broadly stem from the 1992 Act, as amended by the Trade Union Act 2016, as they have long been recognised as important for society to function effectively. Strike action in some areas of health services can put lives at risk or cause serious harm to patients. As my noble friend Lady Noakes rightly pointed out, it is about protecting the patients; that is why we have brought this provision. It has the potential for far-reaching consequences for members of the public who are not involved in the dispute. That is why we are looking to include the health services within the legislation.
I will try to answer some of the specific questions from the noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and others on why we are including health in the minimum service levels. We need to point only to recent experience in the ambulance negotiations, where there were concerns that many trusts were not sure, right up until the night before, whether derogations would be approved. The thinking behind the need for consultation was that we can have that certainty.
At the same time, the nurses’ and the doctors’ unions said, in their recent strikes, that they would not cover A&E. In those circumstances, noble Lords must accept that there was a real possibility of not being able to provide A&E services, which would obviously threaten the lives of patients. That is why we feel the need to put those protections in the minimum service levels. However, the most important thing in all this is that the Bill is just enabling legislation; our sincere hope is that it is never needed.

Lord Allan of Hallam: On the recent actions, the Minister talked about how often discussions went to the wire and agreements were reached the night before. Are there any instances he would share with the Committee in which the cover of the voluntary arrangements actually failed, as opposed to going to the wire but getting there in the end?

Lord Markham: We absolutely try to guard against that possibility and get there in the end. The sincere hope is that none of this is ever needed but, as both the nurses and the unions are saying that they will not provide A&E cover—we are seeing a lot of dates where there might be strike action by more than one union at the same time—I think all noble Lords can see a real possibility that A&E services could not be provided in those circumstances. It is those aspects we are trying to protect here. The hope is very much that it is never needed because the trusts, as has happened to date, will be able to put in place the right voluntary agreements. That is the purpose behind this.
I will try to answer the questions raised by the right reverend Prelate the Bishop of London, the noble Lord, Lord Prentis, and others, about trying to undermine the trust between the hospitals, in this instance, and employees. I go back to the position that it is for the trust to work with local unions to work out what the best level is, in the hope and knowledge that this will probably never be needed. It is just enabling legislation because we can see that there are circumstances, as I mentioned before, where it might be needed.
I will try to answer some other questions. On the point about the treatment of devolved Governments, I go back to the point of it being up to individual trusts.

Lord Collins of Highbury: Before the Minister moves away from the trust issue and the point made by the right reverend Prelate, does he think that the threat of this law will impact trust and confidence in the current arrangements? Does he sincerely believe that the threat being introduced will not impact that trust?

Lord Markham: I believe that the principles are there in the derogations. Again, I believe no one wants to see any circumstances where there is a threat to life. That is felt uniformly by all of us and everyone in wider society. At the same time, the point I made is that, if you have nurses, doctors and ambulance workers all on strike at the same time and all saying that they are not going to provide A&E cover, we can all see the very real prospect that that is going to be a threat to life and limb. Those are the circumstances that we are talking about.
To answer the question from the noble Baroness, Lady O’Grady, if a trust within a devolved Government does not want to take this up, it does not have to. In exactly the same way, a trust in England does not have to take this up if it does not feel that it is needed, but it is there as a last resort.
To further answer some of the questions on whether that could involve private companies, maybe the best example is the case of the train services. That is obviously a different aspect of this, but in some areas of health we know that we are moving towards a digital world. As the noble Baroness knows, it is something I am personally responsible for. We can see digital services being the backbone of the health service more and more. In some cases, their ability to be there will be vital for the protection of life and limb. These may be unlikely circumstances but, in all honesty, I can see circumstances where that would need to be involved if it meant that there was some risk to life and limb.

Lord Fox: I have not been participating in this group, but I have been for the rest of it. I am intrigued by that answer. I am wondering how a private company would know that it falls within the remit of the Bill. Is the first time it would find out when it is required by the Government to deliver a work order to its employees? Will there be some other form of formal notification that may fall within the ambit of this legislation when it commences?

Lord Markham: I thank the noble Lord. This again relates to consultation. In all of these circumstances, for services that we think could be critical, we would go through the 12-week consultation process, followed by the 12-week implementation period. That is how the private company in this example would know there was a possibility of becoming involved in this, and there would be the consultation process to consider the matter fully.
On whether this is compatible with Article 4, again, we are talking about only circumstances where people potentially going on strike would cause a threat. We have circumstances like that already: the police and the military are not allowed to strike, and it is not considered that that conflicts with Article 4. So I do not think there is a read-across in the same way—

Lord Collins of Highbury: In the two cases that the noble Lord mentioned, commitments were put in place for both the Army and the police. Does he think that those sorts of commitments should be given to our health service workers, who delivered a lot during the Covid epidemic, as he knows?

Lord Markham: We all agree that they did a huge amount. I do not think that there is a particular difference in circumstances: the principle behind the derogations today is to provide that life cover. That is absolutely there, which is why the hope and the thought is that this legislation might never need to be used. As I said, it is very much a back-pocket thing because, in the circumstances described today, it has managed—

Baroness Chakrabarti: “Health services” need not be as broad in the Bill. In his gracious response, the Minister talked about the life and death level of risk. If that is the case, why should the provision not be narrowed from “health services” generally, which is incredibly broad—it covers everything from dental hygiene to nutrition advice—and tightened to the life and limb cover he refers to?

Lord Markham: We are talking about the absolute minimum services. As I said, we had the consultation process. Clearly, we would be saying that this is an area where there is a real concern over the risk to life and limb—that would not apply to some of the noble Baroness’s examples—and we would then go into the 12-week consultation period to work through that. The burden will be very much on us to show that that risk to life and limb absolutely is there, because that is that principle behind all of this.

Lord Collins of Highbury: So is the noble Lord saying that those are the circumstances in which the powers in the Bill would be introduced? If so, can he explain passenger transport to me?

Lord Markham: I am well versed only in the area of health, and I will defer to my noble friend to deal later with that. I am replying specifically on health.

Lord Fox: The Minister needs to understand that we are taking the whole Bill in this Committee, not just the health part—we are thankful that he has come to speak to that part. But we are trying to understand how we have train services at one end and resuscitating people on the verge of death at the other, and we are trying to find a common legal structure that fits them all. Does the Minister agree that there is a big difference between the minimum service level on a commuter line from Croydon and the minimum service level in an accident and emergency hospital? Can he explain how we are supposed to square those two issues within the framework of this legislation?

Lord Markham: I thank the noble Lord. I believe that there will be a group of amendments specifically on transport later on. That will be the opportunity to answer those questions. I have been drafted in—dare I say it—at the last moment, because it is a very important issue and I wanted personally to talk about the health aspects, which I am attempting to do, so please forgive me if I try not to stray into other areas. There will be the opportunity to discuss transport later on.
The noble Lord, Lord Allan, asked who wants this. It is a backstop power. Trusts will never need to use it if they do not want to. I believe that most trusts, and I hope all, have excellent relations and are able to make sure that these provisions are never used or needed.

Lord Allan of Hallam: It is helpful having the Minister here—we appreciate it—because he will be responsible for those health trusts. I am cautious about the notion that it is a backstop power. It is something that the Minister repeats often, but is he concerned that there will be pressure either for the legal reasons that the noble Baroness, Lady Chakrabarti, and I have outlined—that there will be judicial processes that force trusts to think that they have to impose a minimum service level whether or not they want to—or just political pressure? The Government have brought this legislation in. If trusts say, “Look, we don’t want to impose this, because we think it is bad for our area”, are Ministers really going to sit back and say, “Fine, we’re not going to bother”?

Lord Markham: As I answered earlier on the devolved Governments, by definition, we accept that different trusts have the ability to work out what is best for their own area. Clearly, devolved Governments will each have their own opinion on how they want to act. The same principle exists in each place. We are not saying to each trust, “Thou shalt enact it in this way”; we are just giving those backstop powers. The most important thing here, which I think we all agree on, is for there to be the ability in all circumstances to protect life and limb. If doctors, nurses and ambulance crews all go on strike at the same time and say as part of that that they do not want to provide A&E cover, that is a circumstance where we are not able to provide those minimum services. I think that most fair-minded people would conclude that there is a risk to life and limb in that case.
The points made about civil claims—I know that they are very much the concern of the noble Lords, Lord Kakkar and Lord Patel—will be addressed in considering later amendments.

Lord Thomas of Cwmgiedd: I want to take up the Minister’s point in relation to devolved Governments and health services. As I understand him, assuming the Bill goes through and the Secretary of State for Health decides that there is to be a minimum service level, that does not compel the Governments in Scotland and Wales to adopt it; it is completely voluntary for them, just as it is for trusts. Have I understood the Minister correctly? If neither trusts nor the devolved Governments are in any way bound to impose this, it seems to me a matter of such importance that it ought to be dealt with by specific provision in the Bill. Otherwise, one will have problems for the future. The last thing we want ever to do is to have to rely in any actions that follow on an assurance given in this House—not that I am doubting it for a moment; it is just a question of clarifying how this works. It is a matter of such importance that it must be clarified. The Bill can easily be amended to make it clear, both in respect of devolved Governments and of health trusts, that these are the standards set but the devolved Governments do not have to impose them.

Lord Markham: Again, my understanding is that there will be later groups of amendments where we will talk specifically about the devolved Governments, so there will be further opportunities then to discuss this matter. However, on the principle the noble and learned Lord raises, we are setting down, in consultation, what we think the minimum service levels need to be to protect life and limb in these circumstances. In the case of ambulances, which was mentioned, that covers the ability to answer 999 calls, to categorise whether it is a category 1 or category 2 call—by the way, we are not seeking to change the definitions of category 1 and category 2—and to ensure that those calls can be answered, because they are life-threatening circumstances. To enact that, it is up to the employer—in this case, the trust—to work with local unions to ensure that it is in place, and how trusts decide to do that is up to them. It would be fantastic if they never needed to refer to that, but we, the Government, want to protect these circumstances so that we will not have occasions when A&Es are unable to operate.

Lord Thomas of Cwmgiedd: It may be that we need to go into this matter in some more detail, but what concerns me is this: I do not really know the detail of health law but let us assume that trusts are under a legal duty to carry, and to provide for, hospital services. So I assume that the Minister is saying that, as this goes forward, there will no comeback from the Government on a failure to exercise a legal duty to follow that, if they decide, “No we don’t want to impose this”. There will be no comeback, because it will be up to them.
This becomes very important when one turns to the liability of trade unions, because if a liability is imposed on the health trust for failing to comply with minimum standards, and it does not do so for various reasons, is  there any consequential liability to the trade unions? This is quite a difficult and important subject, but for the devolved Governments, and, in this case, for health trusts, it is critical to know to what extent they are bound, when they take a different judgement on how to deal with the strike, to follow the minimum standards established by the Government. It is a critical question, and I do not want to be unfair to the Minister by making an intervention.

Lord Markham: I thank the noble and learned Lord for his comments. As I have said, in these circumstances we are talking about putting in place those minimum service levels for the trust to be armed with and to be able to enact. We are not trying to put in place any legal framework that we can use to go back and sue the trust for not holding to it, and we are not trying to put legal obligations on the trust to do it. Instead, we are trying to give an enabling ability, to be used only, as I said, as a backstop in these circumstances, and with the hope that they will never need to take that forward.

Baroness Chakrabarti: I appreciate that the framework of the Bill as a whole is not the Minister’s responsibility; he is in Committee to talk about health services in particular. So I will ask him a question specifically on health services. Given his very clear answers that he anticipates the life and limb health provision being a matter only for the Bill, would it not be wise, advisable and appropriate for the reference to “health services” in the Bill to be tightened, so that it is clear that the regulation-making power is only about the life and limb provision he has talked about so extensively and explicitly?

Lord Markham: Again, I believe that it is trying to work off the 1992 definitions and work. The beauty of these debates, as I have come to appreciate about the House of Lords and the job that it does, even in the short time that I have been involved, is that they make sure, through this good critical challenge, that we can ensure that the legislation is doing exactly what we want it to do. We need to make sure that we get those definitions correct and, clearly, the beauty of where we are at this stage is that we have that ability. I thank noble Lords for that, and I hope that they can see by my responses that this is something that I want to make sure we get right.
I am glancing through the remaining questions—but I hope that I have answered the substance of the questions.

Lord Allan of Hallam: I appreciate the Minister taking so many interventions. On the question of whether the Government have done any modelling, when they did their analysis of the legislation, was any modelling done to try to understand the potential impact on legal liability, civil claims and claims against the NHS for compensation? It would be helpful for us to have that information, because it will be a material factor as to whether a trust, as the Bill says “may” issue work orders; it says “may” rather than “shall”. Whether the trust feels that it can exercise that discretion will depend very much on whether it is incurring additional legal risk. If there is material on that, it would be helpful for us to have it as we go through the scrutiny process.

Lord Markham: First, yes, that has been worked through on this. Secondly, that is one of the purposes of the consultation. Thirdly—this is the point that I was about to make—as the noble Lord will know from my contributions, I always like to follow up in writing when there is a detailed question. If I have missed anything or the opportunity to make more thorough points, I shall take the opportunity to do so.
I hope that I have given a good sense of direction of where we are coming from on this and why we feel that this provision is essential in these circumstances to protect the patients.

Lord Hendy: I am very grateful to the Minister for spelling out the criterion for minimum service levels in the health sector, which is life and limb. Can I explore that a bit further? Life and limb would obviously have applicability to A&E and, clearly, to the ambulance service. Is not the implication that that means 100% service for the ambulance service? I cannot see how ambulance staff are going to know, until they get a call, whether it is a life and limb situation or simply somebody who has fallen, is uninjured but needs helping up—or whatever the situation might be. Can the Minister assist me on that?

Lord Markham: Yes, that is very much what happens at the moment, so that is the categorisation process that is entered into—and, from that, they categorise whether it is category 1, 2, 3 or 4, and the response will depend on that.

Lord Hendy: My Lords—

Lord Markham: I shall just finish and get the point out, and then happily hear the noble Lord’s follow-up question. In these circumstances, we are saying that it is around category 1 and 2, where we really believe that there are those life-threatening circumstances.

Lord Hendy: That is absolutely understood—but is not the implication that the ambulance crews have to be in the ambulances? They cannot be standing on a picket line; they have to be in the ambulances to receive the calls. It is only when they receive the call that they are going to know whether it is category 1, 2 or 3, or whatever the specification is. Surely it follows that 100% service must be provided by the control room and the ambulance service—or have I got it wrong?

Lord Markham: As I say, we have some good experience, because of course this is exactly what is currently happening. What is agreed between the local trusts and the unions in those circumstances is something along the lines that 50% of calls—that is my figure as an example, and please do not take it as read—are category 1 and 2. The others are not in that category, so because of that we would look for a level of workforce to cover that level of calls. Please do not take the 50% as read; I am just taking that as an example, so that the noble Lord understands the principle behind this.

Lord Hendy: I am so sorry to intervene again; this is absolutely my last intervention. If the criterion is life and limb then many of the categories listed by my noble friends Lord Collins and Lady O’Grady—community health services, pharmacists, mental health services, sexual health services and so on—can have no fear that there will be minimum service levels prescribed for them, because they are never in a life and limb situation.

Lord Markham: Correct. I emphasise once more the process set out here: if it were decided that there was that threat, that is the point at which we would go into consultation. That is the thinking behind the process. We would have to believe that in such an area there would be a threat to life and limb, and would then go into consultation on minimum service levels. I hope that this has been helpful. It has been helpful to me as well, as ever, to see the value of the Lords. I am a big believer in critical challenge.

Lord Fox: The Minister will get plenty of that here.

Lord Markham: The noble Lord never disappoints me. I always say, from my business life, that two plus two equals five. Whenever you try to develop a new service or product, you need critical challenge along the way; you take points on board and you add to it, and you end up with a better product. I thank noble Lords sincerely, and I think they know me well enough to know that I will continue to take their input as we go through this process. I hope there is an understanding by noble Lords that we are trying to strike a reasonable balance here between the right to strike and the right to protection of life and limb, and that, in those circumstances, we cannot support these amendments.

Baroness O'Grady of Upper Holloway: I thank the Health Minister for that reply, especially given that, as he said, he was drafted in at the last minute. I thank him also for his sentiment that he sincerely hopes that the provisions in the Bill will never need to be used.
I must share with the Minister my sincere hope that the NHS will be properly funded and staffed, and that its staff will be fairly rewarded so that they will never need to vote for strike action. However, the truth is that I cannot rely on that, which is why the human rights that have been spoken about are so important. I feel very strongly that the human rights of workers should not be treated as somehow second-class or requiring less scrutiny and parliamentary accountability; they are fundamental to millions of people’s working lives. In the health service, as we have heard, this is going to continue to be a big issue for us to address.
What I did not hear was an adequate answer to the real-world consequences of the Bill on the morale of NHS staff and on the industrial relations situation in the NHS. The Minister will know how burned-out, demoralised and concerned many staff are. This is not a luxury option; it is absolutely core to how people feel they are being treated, whether they are being respected and whether their professionalism is being respected. They are dedicated to the service and  any suggestion that they are not is felt to be deeply insulting. I know the Minister understands how important that is.
It is not just unions saying it. As we have heard, the employers have said that they do not want the Bill, and I hope the Government will listen to them too. By the way, there is a third part of the equation, which is service users. As I have already said, we have seen that two-thirds of the public support the nurses and ambulance workers on strike. They understand that those staff are defending the service, as much as themselves, against real cuts in pay.
There is so much I could cover—and I promise I will not. However, the Minister talked a lot about A&E. I genuinely do not understand why we therefore have had a consultation only on ambulance workers. I am a bit confused by some of the previous contributions as to when we will expect—can we expect?—further consultations on further groups of workers. It is still very unclear, and that seems to me unfair on those staff and the unions that democratically represent them, who want some certainty about what the intention is and where this is going. It would be good to follow up, and perhaps we can do so. I appreciate the offer of written replies and correspondence on some of these points.
I am not going to go through all the other points but I end by saying I have a very strong suspicion that the Minister has some discomfort with the Bill too. I think the Minister is closer to the NHS, the staff, the employers and the public who simply do not want it, and knows that it will have real-world impacts. All I can do is strongly encourage the Minister to speak to his fellow Ministers and relay that real-world experience—the sense of insult and the desire not to have people in hobnail boots walking through delicate industrial relation situations when what we really need is to address the root causes of those disputes. That is what everybody wants to see, so I would encourage the Minister to use his influence accordingly. I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Amendments 4 and 5 not moved.

Amendment 6

Baroness O'Grady of Upper Holloway: Moved by Baroness O'Grady of Upper Holloway
6: The Schedule, page 3, leave out line 27Member’s explanatory statementThis amendment would remove “education services” from the Bill.

Baroness O'Grady of Upper Holloway: Amendments 6 and 7, in my name and that of my noble friend Lord Collins, seek to test the inclusion of education in the Bill.
No doubt the Minister will be relieved to hear that I do not intend to repeat all the arguments that I made on health, but the concerns about compatibility with international law and the protection of human rights  are just as pronounced in respect of the education sector. The Government need to justify why education is included in this skeleton Bill.
Under international law, when fundamental rights such as the right to withdraw labour are at stake, it is not sufficient to impose minimum service levels simply because strikes are disruptive, however inconvenient they may be; nor can the Government seek to justify curtailing the right of education workers to withdraw their labour on life and limb grounds.
I would be grateful if the Minister could explain why the Government’s mind has changed so radically in respect of the education sector from the view set out in their human rights memorandum attached to the transport strikes Bill. It said:
“In the education sector, there are various statutory duties on schools (and in particular head teachers or governing bodies) regarding the organisation, management, and control of a school, safeguarding and supervision of children (both on and off site) and health and safety duties regarding pupils which will impact on contingency arrangements needed in the event of strike action. For example, DfE Guidance for school leaders, governing bodies and employers handling strike action in schools provides statutory guidance on using volunteers to cover striking teachers and outlines how schools are often organised into ‘family groups’ enabling them to pool staff to ensure minimum services are delivered, and thus minimising the impact on children … The large number of employers in the education sector would also likely make minimum service arrangements difficult and very burdensome to implement.”
That is what the Government’s own advice said.
Yet again, the Government stand accused of attempting to distract from the causes of the dispute by attacking the fundamental rights of staff. Even using the most conservative IFS figures, between 2010 and 2022 average teacher salaries were cut in real terms by at least 11%. That has led to a recruitment and retention crisis and burnout among those who remain. The public get that the root cause of this dispute needs to be tackled. Polls show that a majority of those who express a view support teachers taking strike action, and anybody who has tuned into Mumsnet will have seen there is significant support for teachers there, too. Yet again, it is regrettable that the Government have failed to launch a consultation so that the views of the public and those most affected can be taken into account by both Houses of Parliament. We also really do need an adequate account from the Minister of how these proposals will work when education is a devolved matter and the consent of the devolved nations is withheld.
I also want to highlight the very real impact of what will happen if the Government persist with this Bill and with attacking teachers and their unions. The consequences for education services could be far-reaching. As I have argued before, suppressing strikes will not deter workers who feel they have a just cause. We know that the current strikes have been prompted by years of real pay cuts and the devastating impact and consequences of recruitment and retention issues. Unless the root causes of the strikes are addressed, if this Bill becomes law, we will simply see an upsurge in other forms of action. Just to give noble Lords an example of how real that is: using ONS data, the TUC calculated that the Government benefited to the tune of £8.6 billion  from unpaid overtime by public sector staff last year, with an average of over 8 million hours of unpaid overtime each week.
As we saw in the recent WhatsApp leak, teachers’ work ethic may be described by some Ministers—or former Ministers—in a contemptuous fashion. But it is worth remembering that in that unpaid overtime league, teachers are near the top. Contrary to the view expressed by the then Education Secretary that teachers do not want to work, our schools only survive because staff put in hours and hours of unpaid overtime each and every week. Imagine what would happen if that good will was withdrawn with, for example, a work to rule.
I see no evidence in the Government’s red-rated impact assessment that any of this has been addressed in any serious fashion. There is a very real cost to getting this wrong—all the more reason why this Bill should be subject to proper parliamentary scrutiny and accountability. I beg to move.

Baroness Garden of Frognal: My Lords, I have to inform the Committee that if Amendment 6 is agreed to, I cannot call Amendment 7 by reason of pre-emption.

Lord Fox: My Lords, I was hoping that the noble Baroness, Lady O’Grady, would leave me something to say, and I think there is a small window of opportunity. The Minister will be pleased to know that it is a small window, as I note he is on his seventh Haribo and may need further sustenance if we go on much longer. I thank the noble Baroness, Lady Barran, for coming and speaking to this. It is very good to have the portfolio holders to address this, and I really appreciate that.
In the to and fro on Amendment 2, we began to nail what the Government mean by “education services”. The Minister said that it is more than just up to 16 but she did not go further. We are still not clear whether it covers further education and higher education, so Amendment 7 is a useful starting point in trying to set out in some detail what education services the Government have in mind. There are others—cleaning and janitorial services, for example—that are not included in that but are crucial to the safe running of a school. Anything that the Minister can say about what the Government feel is within the scope of the Bill would be helpful.
I am going to focus on schools because that appears to be where the Government are focused at the moment, but I am happy to be guided in other directions by the Minister. As the noble Baroness, Lady O’Grady, said, there was strike action in schools by members of the National Education Union in February and further action is planned, apparently, with strike action from the National Association of Head Teachers taking place in Wales; in Scotland, the Educational Institute of Scotland and two other unions are also planning future walkouts. So this is a serious issue.
We should be aware that there are a number of wide potential implications when there is a teachers’ strike. There are issues around child safety, parental inconvenience and the economic aspect for parents, who may then need to arrange childcare. Of course,  there are also the effects on a cohort of children who may be missing out on essential education. There are ballots going on, so this is a real issue.
In order to understand this issue—indeed, to understand it at the micro, school level—I will assume that this Bill has been passed and the Government have established a minimum service level for schools. At the heart of this is the question of how the Bill is going to operate. There are very many schools and therefore a great number of employers in the school sector. I am interested in how the Government expect to enforce a minimum service level in schools. Who will be the employer who may field a work order? Is it the head teacher? Is it the unpaid, volunteer governors? Is it the local authority? If it is the local authority, how will free schools fit into this because they do not have a local authority? Is the governing body of a free school then the accountable employer? Clearly, the Government will have thought through every detail here. I am very keen to hear the details of how the Government expect to manage minimum service level delivery at the school level.
Perhaps the Minister could then tell us how many teachers in a school will make up the minimum service level. I am not aware of any state schools that have too many teachers; indeed, most of them tell us that they have too few teachers and too few classroom assistants. So what will be a minimum service level for teaching children in our schools in the event of a strike? Will it be everything that they are doing now—in which case, as we will discuss in other areas, the strike would, in effect, be banned—or something else, such as childminding? If it is childminding, the noble Baroness, Lady O’Grady, has set out the requirements that already exist under the statutory duties for schools and in the Department for Education’s guidance, which require head teachers to take into account the implications for how children are looked after and safeguarded in the event of a strike.
It is good that the noble Baroness, Lady Barran, is here. I really want to hear about all of that micro detail because it is understanding the detail that will help us to see inside the Bill and bring it to life. Because it is such a skeleton Bill, it is impossible for us really to understand the cogs and wheels that will fit together and deliver a minimum service level for our schools.
However, as the noble Baroness said, this does not address the real issue in our schools. We cannot talk about schools without mentioning that teachers are demoralised and feel undervalued. There is a funding crisis across all our schools. This all plays into the debate that is going on around our schools. There is clearly a crisis in teacher retention and recruitment for our schools, driven by years of pay cuts but also by that frustration with the system. Can the Minister tell us how the threat of this Bill helps to improve the morale of teachers in our schools? What is this governmental body language doing for our teachers? Whether or not it is ever used, the Bill sets a tone in the relationship between government and our teachers and not one that we should be propagating.
I am very pleased that the noble Baroness, Lady Barran, is here and look forward to her answers to our questions.

Lord Mann: My Lords, I am perplexed by this Bill and how it is worded. I am beginning to think that some deal has been done to promote the concept of an elected House of Lords because, if everything goes to statutory instruments and regulations, I am not sure of the purpose of the current revising Chamber. Perhaps some reverse Henry VIII amendments should be put in to assist that process, because this kind of business is as bad as it gets in that context.
In referencing my voluntary rather than unpaid interests, while “morale” has been mentioned, I home in on this question of the practicalities within schools. Can the Minister confirm whether any schools or larger multi-academy trusts have requested the inclusion of education and thereby schools in this legislation? If so, what rationale have they used to request that inclusion? Schools are struggling with the complexity of negotiating the additional contact hours that the Government are requiring of teachers.
My experience is primarily within the red wall. I am bemused at the politics. I have always found a Government of any colour, flavour or party picking on a particular section of the electorate and giving the impression that they are targeting them to be quite bad politics. Therefore, I am perplexed at what this is meant to do. Certainly, the parents within the red-wall areas of the country are in no way antagonistic towards a group such as teachers occasionally taking industrial action. It is very rare, but I have never witnessed or heard any antagonism in relation to that. There is sometimes sympathy, and often an agnostic position, but of the hundreds of thousands of emails that I have ever received, there has never been one on this issue. I have never heard it from a single person, even when such disputes have been in play.
That perplexes me, but something else really worries me. Can the Government confirm that the absentee rates in English schools are at the highest level in our history—27.5% on average? Is it true that in the more deprived areas, which would incorporate the red wall and beyond, it is at 33.5%, so one in three is not attending school at the moment? There are many reasons, particularly the aftermath of the pandemic and lockdown, but the behavioural issues are with younger children rather than older children, in secondary school years 7 and 8, which has not been the norm historically. Do the Government agree that with this absenteeism level, the critical factor is the good will of teachers and the flexibility of teachers to work beyond normal contract hours with those families and pupils to get the pupils back into school or to hold them in school?
That is the experience that I see and hear coming through very powerfully, and it correlates further—to elaborate a little on the point made by the noble Baroness, Lady O’Grady—in that, the more successful a school is, the more motivated the teachers tend to be. The more motivated the teachers are, the more flexibility they have and the more successful the school is. Those little bits on the side that teachers do, assisting individual pupils, are critical to how a school performs in the league tables and to what we deem a successful school.
We are in a crisis of the worst absenteeism in our schools in recorded history. How does that fit into the Government’s strategy on this? It seems to me that the  inclusion of education—indeed, the whole Bill—makes no political or legislative sense. From my point of view, the inclusion of education will have the reverse impact to what the Government want on a system that is in crisis, because of the pandemic, in a way that it has never been before.

Baroness Blower: My Lords, it is a pleasure to follow the noble Lord, Lord Mann, in many respects. I began teaching in 1973 and I can count on the fingers of both hands—probably not even using them all—the number of times that I have been on strike. One of the reasons why I was not on strike in the early phases of my career was because we had sectoral collective bargaining: we could make an impact on what was happening with our pay and conditions. I very much regret the loss of collective bargaining in education because it has had a material impact on the way in which teachers are able to pursue issues with their own pay and conditions.
However, let us move on to what the Bill would do. The noble Lords, Lord Mann and Lord Fox, are of course right: there is a very serious situation with regard to recruitment and retention of teachers. That is one of the reasons why there is such a high rate of parental and carers’ support for the action that teachers are taking. To take just one example, one in eight maths lessons in schools in England is taught by someone who has no qualification in mathematics. What chance do we have of providing coherent maths teaching to the age of 18 or 19, as the Prime Minister would like, if we cannot provide it for all the children who have it at the moment?
I cannot tell you how many emails, messages and phone calls I had after people read the WhatsApp messages. The notion that a Secretary of State would say that all teachers were work-shy and did not like or want to go to work beggars belief, to be honest. For anyone who has never been a teacher, I can tell you that teaching is not for everybody, and there are people who voluntarily leave teaching because going into a classroom every day and not being successful is devastating. That is why lots of people leave the profession—because they cannot manage the stress of not just the teaching but all the accountability measures. We really need to hang on to the teachers we have, who are still going to school every day and, for the most part, enjoying their jobs, notwithstanding the terrible levels of pressure that they face. We really need to make sure that we have a proper retention system.
It seems to me that threatening those teachers with the possibility that they will be sacked if they have legitimately voted for and taken industrial action, very much as a last resort—as I am sure everybody in this Chamber knows and as has been said by Kevin Courtney and Mary Bousted, the joint general secretaries of the NEU—will not only risk the possibility of more people leaving teaching, but I cannot imagine that anyone is going to want to come into teaching when there are so many difficulties and challenges that we have at the moment.
On the other issue about cogs and wheels, I am not in favour of the fragmentation that we have seen in our education service, but fragmentation we have. The idea that we can have a minimum service level across 26,000 or 28,000 schools, not accounting for alternative  provision and so on, simply is not workable. Much more importantly for me, it is not desirable. It conveys exactly the wrong impression to teachers, and we need to be talking up teaching—I am very prepared to do it—because even on a slightly bad day it is a wonderful job when you are actually in there with the children. It is not so great when you are dealing with Ofsted, and when you look at your pay at the end of the month, but it is fantastic when you are actually dealing with children and young people.
This is absolutely the wrong place to be going. I oppose this Bill in its totality, but I certainly oppose what is being said about education in this.

Lord Allan of Hallam: My Lords, I just wanted to rise briefly to follow up on a couple of points we made in the previous group that I think are applicable here. In some ways, we are dealing with apples and pears; the Health Minister talked about the legislation as being essential because of life and death situations, and I do not think that any of us, however much we value education, would argue that we are in the same game here. But on another level it is apples and apples, because the problem with both the framings in the Bill is that they just say “health services” or “education services” in this incredibly vague way. I think that some of the same criticisms about foreseeability and predictability apply here, as they did with the previous group.
Specifically in the context of education, I am keen to hear from the Education Minister a similar assurance to that we were given by the Health Minister that these are permissive powers: that affected entities may give work orders, but that they will never be forced by the Government to do so. Even if a minimum service level is established in education, I hope we are going to hear that no school, college or university would be made to give work orders; they are simply empowered to do so. I hope that will be the Government’s position; that would be consistent with the previous group. Even if they agree that this is the case, I still have concerns about the effect in practice, as I did with the previous group.
I have children who are, at the moment, in a school affected by strikes. The school is managing incredibly well; it is keeping the children in exam years in school and finding ways to safeguard the others. The principal writes to us and explains why he supports his striking staff and why they deserve a better deal. That principal is never going to implement these work orders if the Government put them in place, except in two circumstances. I think we need to explore that in the context of all the powers in this Bill.
The first circumstance is that the Government in some way try to make the principal give work orders that he does not want to give to his staff. They can do that through funding mechanisms—“You don’t have to give the work orders but, if you don’t, we’ll kick your windows in”. That is not really a free choice, yet we have to worry that this is the intention of the Government. Certainly if this Government stay in power, that is the way they would handle future disputes: “Now we’ve done the minimum service levels, there is no excuse for any school not to implement it and issue work orders, whether they like it or not”.
The second mechanism was again raised on the health trust situation, and I think it is also relevant here. It is that an educational institution feels legally vulnerable if it does not implement the minimum service levels. It could be the case for schools, but it is particularly a concern for universities. We already see universities being sued by students for alleged failures to deliver the service that they signed up for. I will not go into the rights and wrongs of those cases, but again you can imagine a situation in which a university says, “Our industrial relations are good. Yes, there is a strike. Yes, we can manage it. Yes, there is a government regulation that talks about minimum service levels, but we don’t want to give work orders to our staff because we think that will worsen the situation, not improve it”, and then find itself subject to legal action. With that threat hanging over them, the leadership of our education institutions ends up doing things it does not want to do and has not chosen to do.
The word “may” sits in the Bill and is at the heart of everything. I think this Minister will say, as the previous Minister said, “This is all optional—a backstop power—and we are not going to force anyone”. That only works if the Government can give us assurances that they are not going to run a protection racket—“Issue the work orders or we kick the window in”, name and shame, or whatever mechanism they want to use—and that they have taken the advice that says that even if they have implemented the regulations, our institutions are not required to implement them and cannot be sued through civil claims simply for failing to implement a minimum service level in a regulation under this legislation.

Lord Hendy: My Lords, in the previous group I drew attention to the fact that the Delegated Powers and Regulatory Reform Committee report criticised the absence of detail in the Bill in relation to the provision of minimum service levels. In that group, the Minister explained to us that the criterion in setting minimum service levels in the health sector would be life and limb. Will the Minister say what the criteria are for the setting of minimum service levels in the education sector? What factors are going to be taken into account? A second and related point is about how the minimum service level is to be set. Is it going to be some percentage of the hours that teachers do, or something of that kind? What is it that the Government have in mind by way of a metric to measure the minimum service level?
As an associated point, what is the metric that employers will use to identify the workers necessary in a work notice to implement the minimum service level? My noble friend Lady O’Grady pointed out in opening the debate on this group that millions of hours are given by public service workers, and hundreds of thousands of those hours are provided by teachers in unpaid voluntary overtime. Quite clearly, the minimum service level, still more the work notice, presumably cannot specify that teachers have to work a minimum service which includes voluntary unpaid overtime, so the minimum service that could conceivably be specified is limited to the 35 or 38 hours or whatever it is per week specified in the contract of employment of each  teacher. Effectively, if the Government implement 100% minimum service levels, there will be a work to rule. All the teachers will do the absolute minimum hours that their contract specifies. I invite the Minister to help us on how that could possibly be exceeded in a minimum service level and on what it is that the Government have in mind, taking that very important factor alluded to by my noble friend into account.

Baroness Barran: My Lords, it is a pleasure, as my noble friend Lord Markham said earlier, to respond to your Lordships’ critical challenge. I thank the noble Lord, Lord Collins, and the noble Baroness Lady O’Grady; it really is a pleasure to be across the Dispatch Box for their amendments. I put on record the Government’s appreciation for all teachers, teaching assistants and staff who work across our schools and colleges and in higher education for the extraordinary and valuable job that they do.
Amendments 6 and 7 seek to remove the education sector and education services that are within scope of having minimum service levels implemented. As noble Lords know, the key sectors outlined in the Bill broadly stem from the 1992 Act as amended by the Trade Union Act 2016, and they have long been recognised as important for society to function effectively.
The noble Baroness asked why we need minimum service levels in education services. She can probably anticipate my answer, which is twofold: first, they have far-reaching consequences for children, who are potentially denied access to education if their teachers or other staff are on strike, and, secondly, it has an impact on their parents, many of whom work in other critical services but are unable to go to work. It is only right that these essential services, which the public pay for and expect to be there when they need them, are included in the Bill so that there is a reasonable balance between the ability of workers to strike and the rights of the public. The Government therefore cannot support the amendments.
Amendment 7 would exclude the vast majority of education services from the Bill. The Government believe it is right that the detail of specific services and minimum service levels is set out in secondary legislation. I am afraid that is why, in response to the noble Lords, Lord Fox and Lord Hendy, who asked for specific detail on criteria and metrics for minimum service, I am unable to give that detail to the Committee today.

Lord Collins of Highbury: Sorry to interrupt, but the Health Minister was able to do that so I do not quite understand why the noble Baroness cannot.

Baroness Barran: My understanding is that the policy in this area is perhaps more developed in health, where I understand a public consultation has been published in relation to ambulance workers. That is not the case for education.

Lord Fox: In the spirit of trying to help, I can understand why specific MSLs are not possible, but the department must have in mind what it thinks a school would do and deliver in the event of a strike. Are we looking at essentially safeguarding, as I said,  or are we looking at teaching a full curriculum for that school? Or could there be something, such as my noble friend mentioned, in teaching particularly crucial years in the school and then safeguarding the others? Could she give us some sense of what that looks like?

Baroness Barran: Genuinely in the spirit of being helpful, those are matters for a consultation if the Secretary of State decides to proceed with one.

Lord Collins of Highbury: If I may correct the noble Baroness, the Health Minister was not setting out the consultation, which is restricted to the ambulance services. He was specifically talking about accident and emergency and life and limb. So the Department of Health clearly has reached a conclusion that was not subject to responding to a consultation.

Baroness Barran: I can only repeat that the Secretary of State is currently considering all options. When I am able to say more on this matter, I will be delighted to come back to the House to do so.

Lord Collins of Highbury: Or write.

Baroness Barran: I will be delighted to write or take questions on this matter on the Floor of the House.
If I may continue, I will try to address some of the other points that noble Lords have raised. I think I said that on Amendment 7, which would exclude the vast majority of education services from the Bill, the Government believe it is right that the detail of specific services and of minimum service levels is set out in secondary legislation. The Government have no plans currently to move ahead with secondary legislation. Although this legislation gives us the power to introduce minimum service levels within education services, it is not our intention to do so in the short term because it is our strong preference to proceed by agreement and through guidance.
The noble Baroness, Lady O’Grady, asked about consultation. My right honourable friend the Secretary of State is considering all options at the moment. When those become clear, as I said, I would be delighted to update the House. The noble Baroness also asked about the ECHR memorandum and the reference to education. Since the Transport Bill was introduced, we have seen other essential services brought to a standstill. Therefore, the Prime Minister looked again at the issue and felt that disruption had spread beyond transport. Taking account of recent events as well as other evidence, there are a number of important services where the public should be protected, including children’s education, which should be protected against the disproportionate impacts of strike action for the future.

Lord Collins of Highbury: If I may interrupt again, I think this is important because we are dealing with a skeleton Bill that outlines six sectors in which the Government will be given powers. What the Minister is saying—I do not want to put words into her mouth—is that, in respect of education, there is a hope that they will never use the powers that this Bill gives them, because it will be inappropriate. Therefore, I do not quite understand why education is there at all.

Baroness Barran: The noble Lord is obviously entitled to wonder; I think he goes a little far. We have been absolutely clear that we prefer voluntary arrangements.
In terms of employers, obviously local authorities are the employers for local authority schools. For academies and free schools, the academy trust is the employer. The noble Baroness, Lady Blower, and the noble Lords, Lord Mann and Lord Fox, asked if I believed that these agreements would—

Lord Fox: In the event that the Government eventually implement this, is it the local education authority that would draw up the work order and put the names on it, or is it the head teacher of the school who would draw up the work order and list the names of the teachers who are required to attend?

Baroness Barran: It is the employer, so the employer in the case of a local authority-maintained school—which is about 60% of our primary schools and about 20% of our secondary schools—would be the local authority. It would be the academy trust in relation to academies and free schools. The specific trust is the employer, and therefore it would be the board of the trust.
In relation to teacher morale and the impact of these potential minimum service levels on teacher morale, I would not want to generalise about that, but there are a number of issues that are clear from surveys, research and talking to teachers that really matter to them. One, of course, is salary; the second is workload, and the third is the behaviour that they deal with in their schools. All three are very important, but some noble Lords—I am guessing that the noble Baroness, Lady Blower, is among them—will have seen the same survey that I saw, which showed very clearly that teacher morale matched very closely to levels of behaviour and/or the calmness within an individual school. Within the department, we are working really hard on all those issues.
Those also connect to attendance, which the noble Lord, Lord Mann, raised. I do not entirely recognise the figures that he quoted. He might have been referring to frequent absence, rather than daily attendance. Most recently, on an average day, in our state-funded primary schools, 93.3% of children were in attendance; in secondary schools it was 92.2% and in state-funded special schools it was 88.3%.

Lord Mann: The Minister is absolutely right that those are the government statistics, but are they not the worst in our history? That was my point: through no fault of the Government, but because of the pandemic, we have a major crisis in schools and this has been thrown on top of it. Why worsen the situation?

Baroness Barran: We absolutely know that the pandemic has had a terrible impact on school attendance. That is why I say that the strikes at the moment are particularly unhelpful for children when  we are trying to send a clear message that school is not an optional extra but something that you go to every single day. To have renewed disruption is not helpful for those children or the message that we are trying to send them. I am not confident, but I hope that I have reassured the Committee enough that the noble Baroness will withdraw her amendment.

Lord Hendy: Can I just inquire about the Minister’s proposition that all options are being considered? Can she say whether the possibility has been excluded from consideration of requiring teachers under a work notice fulfilling a minimum service level to carry out unpaid voluntary overtime?

Baroness Barran: I am not aware of the details, but I am not sure that it would be appropriate to comment at this point.

Baroness Randerson: Is the Minister able to answer a brief question in relation to the role of school governors? They actually employ the staff—that is engage the staff. Do the Government not have concerns that these volunteers could be deterred from taking part in what is already a demanding, onerous and very skilled job by problems such as having to identify those members of staff who are needed for a minimum service level, added to their already onerous responsibilities?

Baroness Barran: I have already been repetitively clear that the Government would much prefer to see voluntary arrangements in this area. Again, having been a governor of a school, as many of your Lordships probably have, it is not about picking one single thing that is going to make it more or less stressful. We need to be very clear that the role of governors is incredibly important. We appreciate them enormously and offer them the support that they need to do their role.

Lord Collins of Highbury: Can I just reiterate this point? The Minister says that she and her department would much prefer voluntary arrangements, as they work and they support them. What is her view, or the department’s view, of the impact of threatening to take these powers on those voluntary arrangements? Does she think that it might undermine the voluntary arrangements that she has been advocating?

Baroness Barran: We very much hope that it would have the opposite effect.

Baroness Chakrabarti: I am sorry to press the Minister once more on my noble friend Lord Hendy’s point, but I do not think it is inappropriate because it goes to an important principle in this legislation. If there are some current services in the public space—education is the specific example given in this context—that are being provided at current levels only through a great deal of unpaid, extra hours of voluntary work, is it part of the policy behind the Bill that it is possible for a Secretary of State to prescribe minimum service level agreements that mandate unpaid voluntary work?

Baroness Barran: It would obviously depend on the contractual arrangements in place. My understanding is that not every case would be the same.

Baroness Blower: One of the issues in teaching is precisely that all the voluntary activity is entirely without contractual arrangements. I am sure the Minister will agree that, if we bear down on people’s arrangements in the way this legislation proposes, good will—which is how we normally describe it—will evaporate as teachers will not feel valued and will certainly not feel properly rewarded.

Baroness Barran: I think the only thing I can say is that all these matters would be taken into account in any consultation if the Government decide to proceed.

Baroness O'Grady of Upper Holloway: I thank the Minister, in particular for her willingness to carry on the conversation, whether on the Floor or through correspondence, as it has become clearer and clearer that there are number of specific major problems with this Bill that people will be looking for answers on.
On why the Government have shifted their position from that set out in the memorandum on human rights attached to the Transport Strikes (Minimum Service Levels) Bill, I felt it was a nice try, but it does not address what the Government’s position was—including the fact that there are already safeguarding and health and safety provisions in place. That is important when considering whether this is a proportionate response to fundamental human rights for workers—liberties that we have long treasured in this country.
The key message from the Minister’s response is that there is an intention to take the power but not to use it. As my noble friend Lord Collins said, it is clear that there would still be a very real impact on voluntary good will and morale. As the Minister acknowledges, that has a direct impact of the quality of the education services provided to children and is important to parents. I still feel very concerned about what scope there might be for undue pressure to come on trusts, governors and other institutions to wield and activate this power, even though it may be against their better judgement. Then we get into that highly dangerous territory, for any government of any stripe, where a strike becomes politicised. That point was made before regarding health, and it is a serious one.
I do believe that the Minister has a wise head. I encourage her to think about what it means in practice if you have an individual teacher, named and issued with a work notice, who is highly likely to be a union member who has voted for strike action. As there is nothing in the Bill to prevent this, they may have been picked on because they are a union rep or activist or because, like millions of ordinary working people in this country, those named teachers may simply hold the strong belief that they should have the individual freedom to withdraw their labour.
The Bill would ensure that, regardless, those teachers would be required to work against their will and their own conscience. They would be required to walk past their workmates, crossing a picket line—the main purpose of which is to persuade workers not to do so. The union must encourage them to comply, even if the notice was issued without the union’s agreement. All of this would be under threat of the sack. Potentially,  if these mysterious “reasonable steps” are not taken, all those teachers would lose their protection against unfair dismissal.
I remind the Minister of the words of her colleague, the Conservative MP for Stevenage. He said it was “shameful” that
“individual … teachers & workers can be targeted & sacked if they don’t betray their mates.”
I encourage the Minister to talk to her colleagues and save them from themselves because this would be a disaster for industrial relations, our education service and for our children. I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Amendment 7 not moved.

Baroness Garden of Frognal: We now come to Amendment 8 and the noble Lord, Lord Collins, this time.

Amendment 8

Lord Collins of Highbury: Moved by Lord Collins of Highbury
8: The Schedule, page 3, leave out line 28Member’s explanatory statementThis amendment would remove “transport services” from the Bill.

Lord Collins of Highbury: It is my turn—the noble Baroness and I are a double act today, and it has been very good. I am glad we degrouped the amendments on these sectors to probe the Government on exactly what they intend, because today we heard a range of opinions that I never expected to hear. I am rather disappointed that the noble Baroness, Lady Vere, is not here to respond, because we may have got a third view, different from that of the Minister, who has been clear about the intent of the Bill—

Lord Callanan: I tried to ask the noble Baroness, Lady Vere, but she had prior commitments; otherwise, she would have been here.

Lord Collins of Highbury: I hope—I plead with the Minister—that the noble Baroness reads the debate on this in Hansard. If questions arise, I hope he will encourage her to write to us, because we have heard something quite critical: a definition, for the health service, of who might be involved and the issues involved. We could understand what the Minister was saying on health. But of course he was focused on the fact that the voluntary agreements are what works. The noble Baroness, Lady Barran, was even more clear that the better way is the voluntary arrangements, the agreements in place and the good industrial relations, even when there are disagreements that lead to a dispute.
Now we come to transport, where there are obvious questions. Who is the real target of the Bill? One cannot help feeling that there is a target in it, and it is not any of the things we have heard about so far. Of course, the area where we know the Conservative Party had a manifesto commitment on was transport—  passenger rail transport. Of course, that Bill did not proceed, and instead we have this omnibus piece of proposed legislation, which includes everything but with no detail, no definition of minimum standards and no proper scrutiny. Every committee that has examined this has criticised it because of that nature. This comes back my noble friend Lady Chakrabarti’s point about proportionality.
So let us focus. I will come on to Amendments 9 and 10, but let us deal with the first amendment. I will focus a bit on passenger rail, because we had a very bad red warning—is that what they call it?

Baroness O'Grady of Upper Holloway: Red-rated.

Lord Collins of Highbury: Normally that is a good thing in my party, but in this context it is not, because it failed completely. But let us go back to the impact assessment on passenger rail when it was introduced for the Bill that specifically addressed that issue.
In October 2022, the impact assessment for the Transport Strikes (Minimum Service Levels) Bill was tabled. It said that minimum service levels could have a
“negative impact on industrial relations, which could have detrimental impacts for all parties”.
It said that they could increase the frequency of disputes, meaning that
“an increased number of strikes could ultimately result in more adverse impacts in the long term”—
adverse impacts on all the people that the noble Baroness, Lady Noakes, talked about. They could lead to greater use of “action short of strike”, which would have a particularly significant impact in sectors such as fire and rail. The impact assessment further stated that minimum service levels could lead to “increased operational costs” for employers, with a “particularly onerous” burden on smaller operators, and result in lower pay and poorer conditions for union members and non-union members working in the relevant services. It went on to state:
“If terms and conditions are reduced over time relative to the strength of the economy in one sector then there is a potential for employers in other related sectors to be able to offer similarly reduced terms and conditions”—
we have certainly seen that in recent times.
I quoted at Second Reading, and he is worth quoting again, Mark Phillips, the chief executive officer of the Rail Safety and Standards Board, a rail employer-owned body responsible for developing rail safety, rules and standards, who told a fringe meeting at the Conservative Party conference last October that minimum standards and other planned anti-union legislation
“can be progressed but it won’t make the slightest bit of difference … If you introduce minimum service levels”
there is a consequence. My noble friend Lord Hendy referred to that consequence: it is that fundamental point about how we are going to force people to work and what the consequences of it are. We need a bit of straight talking from the Minister. How does he see minimum levels of service operating in passenger transport? Which employers has he consulted? What role do the Government have in relation to this?
The unions negotiate with the employer, and they try to reach an agreement, but the odd thing about the rail passenger industry is that those employers have contracts to provide those services and within them is a dispute-handling clause insisted on by the Government. Not only do the Government have that clause in those contracts but they say that, in the event of strike action, the Government will compensate the employer, so, strangely enough, there is no incentive for the two parties to reach an agreement. Of course, the shadow behind all the negotiations is the Government, which causes the problem. I hope that the Minister can give us a bit of clarity on this issue, because all this measure will do, as the previous impact assessment said, is make industrial relations worse.
We have spoken about the definition used by the health department and the education department. What definition are we using in relation to transport, particularly passenger transport? Any industrial action is incredibly inconvenient and, certainly, people find it difficult to get to work.
I turn now to minimum standards. I have forgotten the name of the rail operator in the north-west that constantly uses a clause in its service contract to cancel trains the night before, so that people who are planning to go to work the next day will not know that they do not have a train to go to work. I would be grateful to the noble Baroness, Lady Randerson, if she could shout out its name from a sedentary position.

Baroness Randerson: The TransPennine Express.

Lord Collins of Highbury: The TransPennine Express uses that clause, and that is why the public can see through this legislation. This is not about maintaining minimum service levels; this comes back to the basic, fundamental idea that this is an attack on organised labour and its ability to protect its workers. It is the thin end of the wedge, as it were: we started off with transport minimum service levels and then the Government thought, “It is very difficult to define how that will work, so let’s not do that, because we will be forced to define what a minimum service level is in the rail industry and we will have to account to Parliament for that. So let’s go the whole hog: let’s get a skeleton Bill which simply gives us the powers to set minimum service levels across a whole range of services and occupations.” They say that they are focused on public services, but of course most transport services are well outside the public sector and have been for a long time, including aviation.
How do the Government envisage minimum service levels in aviation? Do we have half a pilot? Do we have half the safety staff in a plane? Do we have half the number of planes? I suppose that most unions would go for that last option in terms of a dispute in the airline industry. It is a nonsense, and it highlights that there is a target in the Bill: it is not necessarily the taxi driver, the aviation industry or any of the other things which could be brought into its scope; it is rail passenger transport. We do not even get a mention of freight transport and other things such as that.
I suspect that, as we lead up to the election, the Bill will form part of the Government’s narrative that they are on the side of the public and passengers and that,  according to them, Labour supports strikes and unions. No, the Bill is not about that; that is a false narrative. The narrative is: who defends public services and who supports the commitment of the people who serve us? It is Labour who will support the people and public services. This Government have undermined them, and that is why we have these strikes. I beg to move.

Lord Haskel: My Lords, if this amendment is agreed, I cannot call Amendments 9 or 10, because of pre-emption.

Lord Balfe: My Lords, you could make almost the same speech on every amendment in this group, because, frankly, the Bill is ill thought-out.
I remind noble Lords of my position as the honorary president of BALPA, the pilot union, so I thought it appropriate to speak on aviation. Most of aviation is governed by safety laws which are completely irrelevant to the Bill, but which must be followed—including those established by the International Air Transport Association—and we still have some EU laws that I hope will not disappear when the retained EU law Bill is passed. The fact of the matter is that you cannot have minimum levels of service in aviation. What do you do? Do you say, “The plane to JFK must take off because it has some businessmen on it”? Do you say that of an EasyJet plane to Spain? You cannot distinguish between them.
The other fact of the matter is that airline companies do not have strikes. The whole aim of BALPA and the industry is not to have strikes; they want to solve things. The strapline of BALPA is, “Every flight a safe flight”. It sees itself to an extent like the BMA, which is also a trade union, though we often forget; it is also a professional body that comes together to provide the safest level of service possible. If you think about it, a pilot who takes a jumbo jet up into the sky has £300 million-worth of equipment and probably 300 lives sitting behind him, so the need for safety is the most paramount need of all, and it is always followed—there is never any compromise.
As far as I can gather from the Bill, the Minister would be able to prescribe a week ahead that a flight had to take off. Under the current regulations, a pilot can pull a flight right up to starting the engine on the tarmac. He can say, “I’m sorry, I just don’t feel very well—you’d better get another pilot”, and it is accepted that he can self-certify, because the last thing we want is a pilot endangering the lives of the passengers. That is also the last thing the pilot wants. The pilot and the plane are subject to a raft of safety regulations far in advance of this legislation.
If a Minister a week ahead is going to say that a flight has to take off and that they will designate a pilot, are they going to become experts in rostering? Are they going to know which pilot to put in which plane? As I am sure noble Lords will readily grasp, every plane is slightly different, and every pilot has to be trained to be the pilot of that particular make and style of plane. So you cannot just go and say, “Right, we’re going to have Pilot Jones or Pilot Smith”. You have to get the right pilot, which is what the airline industry and airline unions are very good at, because they both have the same aim.
The Bill as drafted is a total nonsense; it does not make any sense whatever. Why is this provision in the Bill? I am baffled by this, as I can see the need for some laws, but I cannot see a single shred of evidence that this law is going to do anything whatever to improve industrial relations, the productivity and wealth of the country, or any other single objective that we all have.
I am not going to speak again in the course of these amendments, because we are effectively making the same speech. You go to an industry and look at how it works and you work out that the Bill has absolutely nothing to offer. Please could the Minister bring this Government down from where they are and realise that the wealth of this country is created by the workers of this country? Those workers need a decent standard of living, which is why they go to work every day—they go to work to look after their families. Most of them are very proud of the companies for which they work, such as BA and easyJet and all the other airline companies, and this applies across the line.
If you go to the engine division at Rolls-Royce, people are proud of working for Rolls-Royce: not only does it give them a living, but it helps build their country up. Sometimes I get a bit worried because people seem to insinuate that the working people of this country are not patriotic. They are. We saw this when the Queen died. The first thing that happened was that the TUC postponed its congress as a sign of respect. We need to remember, at all times, that the working people of this country are in a contract with the Government and with the people to build a prosperous society, and we should be on their side to achieve that objective. That is the way to have a contented and united country, so I ask the Minister to just put a pause on the Bill. We do not need it at all, but please exclude the aviation services and look at the others and ask, “Will this work?” When the Government get the answer no, they should have the guts to pull it.

Lord Monks: My Lords, it is always a pleasure to follow the noble Lord, Lord Balfe. He followed me as president of BALPA and has done a good job, as I know from all my ex-colleagues in that union. I have long experience of disputes in the transport sector, particularly in railways. In fact, if any noble Lord has a spare half hour and wants to go through the history of flexible rostering and train drivers, I am your man. I may not sell many tickets for that particular gig, I fear, but this is the sector that it is really all about. If the Bill hits the statute book and is used, it is in this sector that the trouble will really start, because it is very strongly unionised, with workers who are no strangers to industrial action. Whether culturally or practically, they have taken it over all their history. It is part of their way of life, and the first person who issues a work notice to them will really be lighting a fire with petrol, because it is incendiary and the cocktail of the dispute will be explosive.
Let us just follow through for a moment what would happen. A work notice is issued. The workers will act collectively, not individually, and refuse it. Individuals might then be selected—this is all provided for under this wonderful Bill—and those individuals will have a  choice to make: whether to go along with the work notice or to turn around and say, “We are sticking with the democratically made decision to strike, and with the union”. Then what happens? What is the response likely to be? Will the employer persist and maybe fire some of them? We will get a situation where there are two disputes: the original dispute and the dispute about reinstatement of the workers concerned. This is nowhere near where we should be going as a country, and nowhere near finding a way to improve industrial relations and get people working co-operatively and in a spirit of mutual trust and support.
With two disputes instead of one, the Government need to be very careful and think carefully about employment law. The party opposite has enacted a lot of employment law since the 1980s. Some of it, I have to say, has been well targeted and has hit the mark, and some of it has had counterproductive effects. Even the election of general secretaries of unions has had a counterproductive effect in quite a lot of unions, with the more radical candidate usually winning. A piece of legislation such as this—an obvious candidate to be counterproductive, as well as wasting a lot of time and expense in all this procedure we are going through at the moment—seems to be about a Government taking a step against the unions that is too far. The Government should pause, think again and put it in the waste-paper basket of the noble Lord, Lord Balfe.

Lord Berkeley: My Lords, I would like to speak briefly to support what all noble Lords have spoken about so far. I am honorary president of the UK Maritime Pilots’ Association, which is exactly the same, with not quite so many members, as the noble Lord, Lord Balfe, has with his airline pilots. We have the same issue of safety. In piloting an aeroplane, you are going rather faster than a ship, and if a ship gets into trouble, it cannot stop, or stop quite as quickly, as we all know. It is a dangerous job, and the pilotage training lasts several years. You start off with small ships and then they get bigger, and the scale of your local knowledge has to be quite dramatic. In most ports, big ships are now not allowed in without a pilot, for very good reason.
The same comments apply to the railways and railway safety. Noble Lords will have seen the accident in Greece last week—a head-on collision caused by some failure of regulation. We do not have that any more. We have an Office of Rail Regulation and various other bodies that make really sure that whatever operation we do is safe. I cannot see how Ministers, or the owners who will control many of the train operators, will be able to say, “Well, you do that. It is not your decision as to whether it’s safe or not; it is our decision”. I do not think a Minister will ever want to say that they have given an instruction that might be seen to be unsafe, because they will probably be for the high jump if it goes wrong. But many of the issues on the railways exist because the safety rules have built up over the years. Driver training used to take two years; it is a little quicker now but not much, and that is for a reason. You are not allowed to use a mobile phone when you are driving for a very good reason, because you lose your concentration. I cannot see how it can really  work when Ministers are effectively giving instructions about someone going to drive the train and being responsible for the safety—closing the doors, making sure everybody is all right, and making sure the track is all right, which is really important.
I support my noble friends Lord Monks and Lord Collins, and the noble Lord, Lord Balfe, in saying “Think again”.

Baroness O'Grady of Upper Holloway: My Lords, the Committee may remember that, back in 2022, the TUC commissioned legal opinion from Michael Ford KC on the train operating contracts because there was concern about the role of the Government in obstructing a settlement to disputes. Looking at those contracts, his opinion was that the Transport Secretary has
“very extensive powers over what can be agreed between rail operators and unions, and very significant contractual power to direct how industrial disputes are handled. Rail operators are not free to agree terms and conditions without the involvement of the Transport Secretary.”
Before discussing matters, they have to get a mandate from the Transport Secretary, and so on. If you add to that the issue of minimum service levels, and the very real concerns expressed about undue pressure being brought to bear on employers to make use of the powers that the Government propose to take for the Secretary of State, you can see why there is concern. When you look at the power to direct disputes, minimum service levels and so on, apparently the only thing the Government are not willing to do is renationalise the railway system.
It would be wrong to assume that, even in that context, rail employers and unions have conversations, and certainly I am aware that train operating companies are not keen on this legislation. They have real concerns about what it would mean for health and safety on the railways; you could run 20% of services, but you have 100% of passengers wanting to get on. It is not as simple as some might believe.
I really wanted to ask the question: who is asking for this? It does not appear to be the employers. Who wants this to happen? Is it really passengers if it involves a detrimental impact on health and safety? People are already worried about the cuts to maintenance jobs. I do not believe passengers want an unsafe railway; I believe they want constructive industrial relations that can lead to a good-quality rail service. That is what passengers want, and I am afraid the Bill flies in the face of that.

Baroness Randerson: I share the disappointment of the noble Lord, Lord Collins, that the noble Baroness, Lady Vere, is not here, but I recall that the noble Lord, Lord Callanan, was Transport Minister back in the day, and I am absolutely sure he has perfect recall of those times and will give us very full answers.
In my Second Reading speech, I emphasised the fundamental differences between life and death services, such as fire and rescue and health services, and their contrast with transport services, which are of course economically important but are not life and death. Fundamentally, there is a whole range of transport  services that can be substituted one for the other. If I wanted to go from Aberdeen to London, I could take the train, I could go by long-distance bus, I could fly, I could drive myself in a car, or, if I wanted the luxury route, I could take a ship and have a cruise. There is only one way to put out a fire, but there are lots of ways of travelling. Another key difference between the services we have been discussing earlier and transport services is that fire services, health services and education services are funded from our taxes and provided free of charge, whereas the profit motive is alive and well in transport services. Although I acknowledge that some transport services are subsidised, we still pay for the vast majority.
Amendment 9 from the noble Lord, Lord Balfe, is particularly useful in featuring aviation, which is, as he pointed out, overwhelmingly in the private sector, unsubsidised and not appropriate for this Bill. Amendment 10 is also very helpful because it features the complexity of transport services. I have a very specific example as a question for the Government seeking clarification on exactly what they mean by the term “transport”. For example, will they be setting minimum service levels for local bus services? If so, will those minimum service levels be for just those routes that are deemed socially necessary and are therefore subsidised by public money, or will they also include those local routes which are run by the same bus company but are run commercially and not subsidised by public money? The company that provides the services and some local councillors will know the difference, but I reckon there are very few bus passengers who will know the difference. It is that kind of detailed question that the Government need to be able to answer in order to clarify what they mean by “minimum service level”.
Even Amendment 10 would simplify the situation. At Second Reading, I used the example of cleaners going on strike on the railways. The Government are concerned about rail drivers but, if the cleaners go on strike, the toilets do not get cleaned so the trains cannot be run. I am interested in what level of detail the Government intend to specify in their minimum service levels.
In our debate on an earlier group about health, the Government’s answers tended to conflate minimum service levels with the provision of basic, life-saving services. Clearly, that does not apply to transport, so we need an alternative interpretation here. The noble Lord, Lord Balfe, said that we could all make the same speech on each group but the point is that we are getting different answers from Ministers. It is therefore important that we keep making the same speech to ensure that, in reading Hansard, we can examine the differences in nuance from one part of the Government to another.
When I go shopping, I write a shopping list. When I am being really efficient, I try to write the items down in the order in which I will come across them as I go round the shop. I have looked at the list of services in this Bill, which I regard as the Government’s shopping list: they are out to get trade unions; therefore, this is their shopping list. If you take the services on the list, I cannot see the logic behind them. Some are life-and-death services; some are not. Some are public  sector services; some clearly are not. Some are devolved; others are not. However, one thing is clear: like all modern life, delivering those services is a lot more complex than someone just sitting in the cab of a train. We therefore need answers on MSLs.
Finally, the previous Minister to answer in this debate told us repeatedly that the Government hope to rely on voluntary arrangements. However, the damage is done if the service is listed in the Bill. This morning, I had a conversation with someone who is involved in the recruitment of nurses. He said that, going back to the time of the pandemic, when we stood on our doorsteps and clapped, the university concerned was getting a lot of recruits for nursing courses. That has now fallen away because of problems in the health service and concerns about the impact of industrial action. This serves to illustrate that we have to be very careful with industrial relations; the noble Lord, Lord Balfe, summed that up better than I can so I will stop at this point.

Lord Hendy: My Lords, I have four questions for the Minister. First, I appreciate that this ground has been covered to a certain extent—at least, what has been covered provokes me to ask this question again—but the noble Lord, Lord Markham, specified that the criterion for implementing or setting a minimum service level in the health service was danger to life and limb. In relation to transport, what is the criterion, or what are the criteria? Once those are established, how is the minimum service level to be computed? Is it a percentage of existing services that will have to be provided, or is some other metric to be used?
The second issue is the boundaries of the transport sector, a point that my noble friend Lord Collins mentioned in passing. The transport sector can be very wide indeed. Obviously, it could cover road transport, freight, passenger buses and so on, but what about parcel transportation, parcel delivery—post delivery? Does it extend to the Post Office? There are a multitude of examples. I would be very grateful if the Minister could tell us what the boundaries are.
The noble Baroness, Lady Randerson, mentioned a strike by cleaners. If the minimum service level for rail passenger transport requires that a certain percentage of trains run, what is the implication for workers other than those who drive the trains? What is the impact on guards, conductors and signallers? If we run half the commuter trains in and out of London, do we not need a full complement of signallers to do it? Are they to be banned from taking strike action altogether by a minimum service level of 100%? What about the ticketing staff and the guards who are in charge of collecting fares and so on? If they go on strike, what are the implications there for a minimum service level? There is also track maintenance. You cannot have 20% of track maintenance. Presumably you need all the track maintenance to keep the lines open. Is it proposed that there would be a 100% minimum service level for track maintenance staff?
The third issue is overtime, which also arose in relation to teachers. Anybody who knows anything about the railways knows that a rail passenger service runs on voluntary overtime—drivers working on the days that they are rostered to have off. Of course, they  are paid, unlike the teachers. Nevertheless, it is voluntary. It is beyond their contractual obligation. How will setting a minimum service level—further, how will setting a work notice—avoid imposing an obligation that those who normally provide voluntary overtime must provide it to maintain the minimum service level? Is that what is being proposed? Is that what the Government have in mind, or can the Minister tell us now that there will be no requirement for rail staff to work voluntary overtime?
The fourth issue is one that the Minister has heard me raise before. This Bill clearly constrains and limits the right to strike. There can be no doubt about that. This has implications under the EU-UK Trade and Cooperation Agreement. Articles 386 and 387 state that where the standards of the International Labour Organization—ILO Convention No. 87 and so on—are diminished by one of the parties, either the UK or the EU, and that affects trade, this will be a violation of that agreement.
The Minister may say that none of these sectors will affect trade. That may be dubious in relation to the transport sector but, leaving that aside, even if that does not apply, Article 399 of the trade and co-operation agreement requires the United Kingdom and the countries of the EU to implement those ILO conventions that they have ratified, including ILO Convention No. 87, which protects the right to strike, and requires them to implement the provisions of the European Social Charter, which they have ratified. The United Kingdom has ratified paragraph 4 of Article 6 of the European Social Charter 1961, which specifically provides that workers have the right to take collective action. The Bill unarguably diminishes that right, which will also lead to a violation of the treaty. Can the Minister explain why he thinks that there is no possible violation involved?

Baroness Chakrabarti: My Lords, I will try to be brief to help the Minister. In a throwaway remark, I think, at Second Reading, he said, with his usual flair and panache, something like, “I notice that noble Lords opposite are very quick to invoke the nurses but not the railway workers”. But that was not quite the case, because a number of us, myself included, had happily invoked rail workers. I will not talk only about nurses. I have travelled on many trains up and down this country and I hugely admire rail workers, who are not just drivers but the people who look after us on our journeys. I have seen rail workers looking after people in distress on overcrowded trains in the heat and helping the infirm on and off trains. As a woman often travelling alone intercity late at night, I have been very grateful for there being somebody in that carriage, so I am very happy to invoke the rail workers.
The Minister said that as though that meant we were on weaker ground tactically—a bit more embarrassed about rail workers than, for example, health workers. It made me wonder whether this is not the real target of the legislation. If rail workers generally, or the RMT in particular—perhaps because the general secretary has a certain hairstyle—are the real target for this legislation, why can we not have targeted legislation that includes what the criteria are and what the service level agreement is? That would be better legislation.
My noble friends have pointed out the differences in the approaches of the three Ministers that we have heard so far. A life and limb test was offered in the context of healthcare. There was no test offered in the case of education, but some embarrassment and a real desire to never have to invoke this legislation at all. Is this difference of opinion a difference of policy and approach in the different departments or, to be more charitable to the Government, is it because these services are just too different and it is not appropriate for them all to be bundled into a single Bill to give sweeping powers to the indivisible Secretary of State to legislate by fiat?
Either way, whichever is true, it is not appropriate for legislation. I say once more to the Minister: if this is about rail services, there are ways to tackle that, with or without legislation, given the very influential role the Government have in relation to the private companies through contracts and so on. If this is supposed to be general emergency legislation, we need criteria suggesting that this is a proper emergency—not in healthcare but in getting teachers to do mandatory unpaid overtime in other areas. A real problem of inconsistency has been identified in the varying groups, and that is why I do not think they have been repetitive but a voyage of discovery about what may or may not be the real motivation and about the obvious weaknesses in the Bill.
Finally, if I may say so, the question posed by my noble friend Lord Hendy about whether a potential mandatory requirement for people to do voluntary unpaid work will—or might—feature, is within the vires of the Bill.

Lord Callanan: I thank all noble Lords who have spoken. First, I apologise to the noble Lord, Lord Collins, that he has me responding to this group. I tried to get the Transport Minister to take it but, unfortunately, she had a long-standing personal engagement and was not able to. I hope that he was grateful that I got the Health Minister and the Education Minister to respond to the other groups, because I thought it more appropriate in those circumstances, lest the Committee get bored hearing from me on all the subjects. As the noble Baroness, Lady Randerson, observed, I was for a brief period six years ago a Transport Minister, but in aviation, not in rail. I have trouble recalling all of the things I did six years ago.
I thank the noble Lord, Lord Collins, my noble friend Lord Balfe, and the noble Baroness, Lady O’Grady, for the amendments in this group. The three amendments seek to alter the sectors and services that are within scope of having minimum service levels implemented. As I have said before, the key sectors outlined in the Bill broadly stem from the 1992 Act, as amended by the 2016 Act, as they have long been recognised as important for society to function effectively. To pick up on the point of the noble Baroness, Lady Chakrabarti, the reason she gets different answers from different Ministers is that the sectors are all very different. Different arrangements and structures of services will apply, so the minimum service levels in those particular sectors will of course be very different as well.
It is the Government’s view that strike action in transport services has the potential for very far-reaching consequences for members of the public who are not in any way involved in the dispute, and who have important business to do, examinations to take and hospital appointments to attend. It is therefore right, in our view, that transport services are included within the scope of the legislation. The need for the public to undertake essential travel, such as the examples that I mentioned, or even, God forbid, to access their place of work, education and healthcare, will be balanced with ensuring that workers are still able to take strike action, in order to design a proportionate minimum service level. I am afraid that the Government cannot support these amendments.
The Government will set out, via consultations, any future services that may be in scope of minimum service levels. As Members have observed, we have published a consultation on passenger rail services which sets out options for how a minimum service level might work. It is a consultation.
Let me answer directly the noble Lord, Lord Hendy: through that consultation we are looking to further understand the impact of strike activity and how minimum service levels could be applied for passenger rail, to reduce disproportionate impacts while continuing to balance that with the ability to take strike action. It seeks views on the most appropriate metric for setting the minimum service level, with options including, for instance, a percentage of services running compared to a similar non-strike day, and a percentage of services running at peak times compared to similar services on a non-strike day, or perhaps volume of passengers able to travel. Those are just some of the measures that could possibly be considered, but it is of course a consultation. It contains different options for setting those minimum service levels for passenger rail. The exact way that those levels will be set, such as prioritisation of routes and hours of operation of services on strike days, will all be considered, and levels set using evidence provided by the consultation responses.
To respond to the points raised by the noble Baroness, Lady Randerson, depending on the service involved there may well be different legitimate aims. For example, in the rail consultations, balancing the ability to strike with the rights and freedoms of others to go about their normal, lawful business—and in the case of the taxpayer, the services that they heavily subsidise—not least to get to work and access key services. Of course, in the case of the ambulance consultation, it is actually about providing life and limb services.
Let me clear up the point made by a number of noble Lords, in particular the noble Lord, Lord Hendy, and the noble Baroness, Lady Chakrabarti. A work notice cannot compel someone to work outside of their normal contractual terms—for instance, voluntary overtime.
With that, I do not think that there were any other questions that I have not already answered in previous groupings. I hope that the noble Lord, Lord Collins, will feel able to withdraw his amendment.

Baroness Randerson: I understand why the Minister is not going to answer the question about local bus services and the bits that are and are not  subsidised within one service, and I realise why he cannot give me a full answer now, but will there be a letter from the Government on that issue?

Lord Callanan: I am happy to give the noble Baroness a letter, but I am not sure there is much doubt about it. Legislation is not dependent on whether the service is subsidised. Some rail services are heavily subsidised, and some are not. It is about providing the level of service to the public. There is no compulsion on employers to use a minimum service level if it has been set in their particular sector. It is probably quite unlikely that we would want to set minimum service levels in local bus services, but that is a decision for the Secretary of State if Parliament chooses to grant him the power.

Lord Collins of Highbury: The Minister keeps repeating the mantra that it is up to employers. As I mentioned, the train operators have a unique relationship with the public and the Government. The Government contract them to provide the service, and I referred to the dispute handling clause within that contract. Will the Minister make clear to us whether in the consultation he has mentioned the Government will put pressure on the train operating companies even if they do not want these minimum service levels statutory powers and notices? Will the Government put pressure on them to use them?

Lord Callanan: I am sorry if the noble Lord thinks I am repeating a mantra. I am answering the questions that are asked of me. People keep asking me the question, so I keep giving the same answer, which is the legal position that there is no legal obligation on employers to utilise a minimum service level. That remains the case. I am sorry if the noble Lord thinks that is a mantra, but that is the legal position. I was asked a question and I am answering it.
Let me answer the other part of the noble Lord’s question. Clearly, in the case of rail, the taxpayer puts in billions of pounds a year to subsidise the service, so my personal view is that the Secretary of State has every right to seek to manage the service properly and effectively. However, the decision to issue a work notice, if the minimum service level applies and is set by Parliament at a particular level, comes down to the employer.

Baroness Chakrabarti: Surely the special point about railways is that the Government are contractor as well as legislator. What is being probed by my noble friends is whether it is appropriate for the Government on the one hand to give lovely contracts to rail companies—who are practically profiteers, in my view, and are not passing on the revenue from increased rail fares every year to the workers or the service users—and on the other hand to compensate them for strike action within the contract, and for the Government then to impose the minimum service level agreement, which is effectively on the trade unions. Is that appropriate? Is it ethical? Is it constitutionally something that we want to see the Government of this country doing?

Lord Callanan: I am not an expert in the rail industry but my understanding is that most of the train operating companies are owned by the taxpayer now through various takeovers, so in my view the Secretary  of State has a duty to run the rail services. Taxpayers are very generous in the support they provide to the rail industry, and trade unions sometimes do not appreciate how much it is subsidised. In my view the Secretary of State has a right to intervene on behalf of the travelling public and the taxpayer. The legal position—the noble Lord, Lord Collins, might think it is a mantra—is that there is no legal obligation in the Bill on employers to utilise a minimum service level if one has been set in their area.

Lord Berkeley: The Minister’s answers have been interesting but they have concentrated about 90% on the railways, apart from a little dabble into the bus sector with the noble Baroness, Lady Randerson.
Do we take it that Ministers are not really interested in the issues listed in Amendment 10:
“aviation services, airline services, airport services … car delivery services, road haulage services, parcel delivery services”—
even trams—and
“rail engineering ferry and waterway services”?
Are the Government not concerned about them? Are they not even going to try to come up with minimum service arrangements for them? Is it just really about the railway? I think that is what the Minister is saying.

Lord Callanan: I am sorry if the noble Lord is disappointed. I answered the questions that were asked of me and most of them were about rail services. That is what we have issued the consultation on, which is why I was answering the questions. The noble Baroness, Lady Randerson, asked me about bus services so I answered that question. I do not know how the noble Lord computes that we are somehow uninterested in other sectors. This legislation will specify transport services as an appropriate power for the Secretary of State to designate minimum service levels for, but the only one that we have issued on transport services at the moment is on passenger rail. That does not mean we are not interested in other transport services.

Lord Hendy: I asked the Minister about the trade and co-operation agreement. He did not refer to that. I do not know if he wishes to do so or if he thinks it is completely irrelevant.

Lord Callanan: I do not think it is irrelevant. We stand completely by the trade and co-operation agreement, but I am not sure how the EU would have a problem with minimum service level agreements, given how many other European countries, including Italy, France and Spain, have minimum service level agreements in place in their legislation. I am not sure how it could accuse us of undermining the TCA.

Lord Hendy: I will not repeat what I said earlier today, but it is quite clear that the ILO in particular imposes conditions on minimum service levels that this Bill does not comply with. That is the difficulty for the Government.

Lord Collins of Highbury: Those countries do not sack workers in these circumstances. We could end up with nurses and teachers being sacked.
We are led to believe that the Bill is a legal provision that will give incredible powers to Secretaries of State across a wide range of industries. Actually, the Minister did not address the question of aviation that the noble Lord, Lord Balfe, and I raised. It makes no sense that that sector, in this broad way, has been put in the Bill. Surely, as my noble friend said, the Transport Strikes (Minimum Service Levels) Bill would have attracted detailed scrutiny about how minimum service levels would operate and how to legislate for them in the railway industry. I have a sneaking suspicion that it was deemed that, “This won’t work; it will be too politically difficult and have too many legal implications. Let’s just give ourselves the power, and then we can determine through the comfort of secondary legislation how we might threaten this and implement it.”
At the end of the day, we will be able to scrutinise other elements of this Bill regarding how the minimum service levels will be set. It has been an interesting exercise today to scrutinise the generality of why these six sectors were picked but also to go through each one separately; we have been able to better understand the range of opinion within the Government and different government departments. I still think that, while the noble Lord, Lord Callanan, can hide behind the legal definition that it will be the responsibility of the employers, everyone out there knows that it will be this Government who will be telling employers to introduce these minimum service levels. The Government will therefore have to take responsibility and be accountable for the mess that they create. I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendments 9 to 12 not moved.

Amendment 13

Lord Fox: Moved by Lord Fox
13: The Schedule, page 3, line 31, at end insert—“(5) Levels of service set by regulations under subsection (1) may not exceed the lowest actual level of service for the relevant service recorded on any day of the 12 months before the regulations are laid.(6) Before making regulations under subsection (1) for the relevant service, the Secretary of State must lay before each House of Parliament a report showing that the condition in subsection (5) is met.”Member’s explanatory statementThis amendment would prevent the Secretary of State from specifying minimum service levels that were higher than the actual level of service recorded by the relevant service in the year before the new regulations are laid.

Lord Fox: My Lords, I will also speak in support of Amendment 18, in the names of the noble Lords, Lord Patel and Lord Kakkar. In my view, this is a group of amendments that sets out one of the key issues of this Bill. Both amendments seek to conflate the minimum service level—as introduced by this Bill—with the actual non-strike base service levels that are being achieved. In this case, we will focus on the NHS, but actually, in my case, not exclusively so. This is something that your Lordships have come back to on a number of occasions, both in Committee and during  Second Reading, and it was previewed by the Minister in a response to the noble Baroness, Lady Fox, when she was here.
In the case of Amendment 13, the Secretary of State would be prevented from establishing minimum service levels that were in excess of the lowest level of service achieved normally in the preceding 12 months. The Secretary of State would also have to lay before Parliament a report showing evidence that this criterion has been met. Inevitably, the Government would be caused to publish the level of service achieved. On Amendment 18, of which I thoroughly approve, we will hear that primary legislation would be used to enforce non-strike day staffing levels for the NHS. Again, the amendment calls for minimum service levels to require fewer staff than on non-strike days.
As I am sure that we will hear from others, this really is a pressing issue because the day-to-day levels of service within the NHS are compromised, largely by very significant staff shortages, and the result is plain to see. Setting out the problems faced in the day-to-day service is an important part of understanding the rationale behind the amendments in this group. Before 2020, the NHS in England had experienced increased demand alongside declining performances on main waiting-list-time measures. In many cases, these pressures have increased following the Covid-19 pandemic. The number of people on a waiting list for hospital treatment rose to a record of more than 7 million in September 2022. The waiting list rose consistently between 2012 and 2019, and has risen more quickly since early 2021. The 18-week treatment target has not been met since 2016.
The number of people going to A&E was above pre-pandemic levels in October 2022. Patients waiting more than four hours in hospital A&E became much more common between 2015 and 2020; a new record high to 45.2% was achieved in October 2022. The waiting list for NHS treatment in England now stands at 7.2 million—as we heard, up from 4.4 million on the eve of the pandemic and 6.2 million in February 2022, when the Government published their elective recovery plan. That plan is now a year old.
The 62-day waiting-time standard for cancer, measured from urgent GP referral to treatment, has not been met in recent years. Performance declined between 2013 and 2018. Since the pandemic, it has fallen further, with 65% of patients waiting 62 days in September 2022, with the target being 85%. The NHS vacancy rate rose from 7.6% to 9.7% over the past year—nearly one in 10. Ambulance response times have risen, with an average response to a category 2 call of over one hour in October 2022, compared with a target of 18 minutes.
These two amendments help to highlight that the key issues are the chronic staff shortages across the NHS, and the fact that the day-to-day service levels that are being experienced by everybody across the country are way short of where they should be. Nothing in this Bill, therefore, addresses the key problems facing patients across the country. Here I am invoking the spirit of the noble Baroness, Lady Noakes, when we talk about patients, because that is what we are talking about here.
To do this, we need a Bill that tackles the workload and creates trust—a Bill that is about not just strike day performance but non-strike day services. That is why the noble Lords on the Cross Benches are proposing a very important amendment, but it is not just in the NHS that the issue of service levels comes up.
I want to come back to one other issue. I said that I would talk about fire and rescue services later; this is where I intend to do it. During Second Reading, I called into question the use of the Grenfell Tower and Manchester Arena tragedies in the fire and rescue consultation. I thank the Minister, the noble Lord, Lord Sharpe, who appropriately gave a written response, given that it was a Home Office issue. In that letter, the Minister refutes that these examples are inappropriate. He said that on strike days, the capability of a fire and rescue service to tackle a major fire in a high-rise residential building, compared to a non-strike day, would be a significant issue. Let us look at that, because it is interesting.
First, the Minister’s response seems to substantially prejudge the consultation. We should not be critical of that, as we have been asking Ministers to tell us what they thought of the consultation. In this letter it is clear that the noble Lord, Lord Sharpe, believes that this should be the conclusion of the consultation—before it has concluded. Secondly, his letter notes that, to date, such cover is arranged through voluntary agreements. Apparently, according to his letter, that is not appropriate for this.
The implication here is that the Government consider that the voluntary agreements are inadequate. Also, given the scale of the sort of emergency for which the Government are comparing the need to have cover, it is clear that all the fire and rescue services available in a particular area would be needed to meet the criterion that the Minister sets in his letter, the implication being that every member of a fire and rescue service would be on the list that the work order would produce. The consequence of that implication is that, under the Bill in its current form, all members of the fire and rescue service would be required to come to work and therefore none of them would be allowed to strike.
While the Bill sets out to promote a minimum service level, which will be delivered by named individuals, the consequences of the service level that we see in the NHS and what should be delivered as a minimum service level, or of what we see in fire and rescue services—we can equally spread that into signalling services in transport—mean that the Bill is effectively banning the right to strike. This Government usually have a workable majority in the Commons; they are fully entitled to bring forward a Bill that bans the right to strike. We in this House would then be in place to review that. The shame here, however, is that the Bill creates powers that would, in effect, ban the right to strike and it is dressed up as something completely different. The issue of minimum service levels conflated with that of current service levels is the crux of determining how many people, if any at all, would actually be allowed to strike under this legislation. I beg to move.

Lord Patel: My Lords, I will speak to my Amendment 18. Much of what I have to say will resonate with what the right reverend Prelate the Bishop  of London and the noble Baroness, Lady O’Grady of Upper Holloway, had to say. I am also grateful to my noble friend Lord Kakkar for adding his name to it. My amendment seeks to explore the logic of defining minimum staff service levels in healthcare, without first having a benchmark of what is an appropriate level of staffing that fulfils the needs of patient care and patient safety.
While this Bill is not about rights and wrongs of strike action, I will express my personal view that, as a doctor, I would never have withheld my service, no matter the circumstances. This Bill grants the Secretary of State powers to make minimum service regulations during a strike across several sectors, including health services. I will speak only regarding health services, as “health services” are not defined in the Bill, which makes the legislation very broad in scope. “Minimum service levels” are also not defined in the Bill but will be defined by the Business Secretary after consultation.
The focus of my amendment is patient safety. Legislation that imposes minimum service levels inevitably means a reduced number of staff expected to provide the same level of care. How can that not compromise patient safety? We seem to have forgotten the lessons from the Francis report, the Kirkup report and the Ockenden review—to mention some—all of which commented on patient harm caused by lack of staff. We are all aware that the health and care service is currently under immense pressure, as has been mentioned several times. There are unprecedented levels of workforce shortfall—around 10% of the total workforce—leading to 130,000 vacancies with over 50,000 vacancies in nursing alone. Staff are exhausted, morale is low and employers are having to pay out huge sums of money in agency fees.
My amendment prevents the Government introducing minimum service levels for health, unless they have, via primary legislation, first set out the appropriate legally enforceable staffing levels for health services on non-strike days. Without this, how can the service or, importantly, the patients know that care with reduced services at a minimum level is safe and will not result in patient harm? Daily, patient safety is compromised as a result of staffing problems. The NHS should be safely staffed every day of the week, as has been mentioned.
Is it even possible that minimum levels of service prescribed at national level could be universally applied? There are huge variations in the intensity and complexity of healthcare provided from one health region to another. Both Scotland and Wales have a legal requirement for services to be safely staffed. Why are the Government reluctant to legislate in a similar way in England? Health professional organisations, including the British Medical Association, the Royal College of Nursing and the Royal College of Midwives, have repeatedly called for this. We have debated this several times in this Chamber. Imposing minimum service levels, defined by the Secretary of State for Business, may end up having an effect that the Government do not want—being forced to legislate by courts for appropriate levels of staffing in healthcare.
While minimum service levels can be defined in some areas of healthcare, it is impractical to do it in clinical areas such as maternity, intensive care, A&E, acute surgical and medical care, to name but a few. In the debate on the group beginning with Amendment 3, the noble Lord, Lord Markham, suggested that health services in this Bill will be interpreted as life and limb services. If that is the case, it needs to be redefined in the Bill by a government amendment. In my 40 years of practice, life and limb situations meant all hands on deck; there was no such thing as a minimum level of service.
What assessment have the Government made of the effect that work notices will have on employer-staff relationships? Who would be blamed if there is a patient safety issue? There are no details in the Bill on what would happen if minimum service levels were not met on non-strike days. I have no doubt that the noble Lord, Lord Kakkar, will speak in greater details about the unintended consequences of this. I hope the Minister will comment on what assessment the Government have made of possible legal consequences if services are staffed below the minimum prescribed level.
I fear that, in a rush to get the legislation through, there has been no thought given to how minimum service levels can be defined in clinical risk areas in the absence of first legislating on what is an appropriate staffing level and the risks to patient safety. As I mentioned, the Minister on the previous group, the noble Lord, Lord Callanan, already referred to the minimum service levels as “life and limb”. I hope the Government give further thought to appropriate safe staffing levels on non-strike days before bringing in any minimum service levels in clinical areas. I look forward to the Minister’s comments on the issues I have raised.

Lord Kakkar: My Lords, I support Amendment 18 in the name of my noble friend Lord Patel. I remind noble Lords of my registered interests; in particular, that I am a practising clinician. The amendment, and my noble friend’s introduction to it, clearly lay out an important point about the consequences with regard to practice on non-strike days if a minimum level of staffing is defined for clinical areas on strike days. It is possible that, on non-strike days, staffing levels will fall below the minimum defined for a strike day. Under those circumstances, would it be appropriate for the healthcare organisation in question to continue to deliver service in that clinical area where the minimum service or staffing level defined for a strike day has been breached?
What would be the consequences for a clinician—a regulated healthcare professional—offering to work and participate in the delivery of clinical care in a clinical environment whose staffing would, on a strike day, be considered to have fallen below a safe level? What would be the consequence for a regulated healthcare organisation of continuing to promote the delivery of care, on a non-strike day, in an area that it would consider unsafe on a strike day if the staffing level were below that defined? For instance, what view have the professional and system regulators taken of this potential situation?
Would there then be a greater risk for potential litigation associated with the delivery of care in a clinical area that had failed to provide, on a non-strike day, staffing levels that were considered the minimum level to be provided on a strike day? Would that have a chilling effect on the capacity or willingness of clinicians and healthcare professionals to participate in the delivery of care under those circumstances? These are important issues that need to be explored in some detail to ensure that they are not unintended consequences of proceeding with an approach that secures patient safety on strike days but, unfortunately, fails to have determined that appropriate protection of patient safety on non-strike days.

Baroness Watkins of Tavistock: My Lords, I support the amendment in the names of my noble friends Lord Patel and Lord Kakkar, and I agree with everything they said. I return to the issue of life and limb. We need to recognise that we have people in hospitals and care homes who, if they did not receive compassionate care, would be left in unclean beds, would not be fed and would not receive what we think of as ordinary, everyday care. Therefore, the whole issue of what minimum levels should be needs to be thought about really carefully. It needs to be thought about outside the opportunities of strikes and in terms of ordinary, everyday care.
I am worried that, without the amendment proposed, it is possible that we would have safer, or better, care on strike days than on non-strike days. I am also worried that, unless we tackle the workforce shortage, which has driven staff to their current level of discontent in health and care, we will continue to have problems. This is not just about people striking for an increase in salary; it is about people’s real concern about being unable to deliver the service they wish to deliver.

Bishop of London: My Lords, I shall speak to Amendment 18 in the names of the noble Lords, Lord Patel and Lord Kakkar, and add my voice to many of the points already raised. I thank the Minister for being much more specific around health. I hope that we can define it much more clearly, rather than having that very broad category, as well as the issue around life and limb.
I remind the Government that, in this Chamber, they have resisted introducing legislation for minimum staffing levels on a number of occasions. It seems incredible that they now want to put in levels of minimum service, which clearly require minimum staffing levels, but are willing to do it only on strike days.
As I indicated earlier, this amendment goes to the heart of one of the key issues with the Bill; namely, that people in the health service who strike do so partly because safe staffing levels are not in place on non-strike days. We have already heard that the healthcare system is under huge pressure, trying to provide quality care with fewer staff, and there are workforce problems. The most recent statistic I have shows that there are 124,000 vacancies across the NHS—that is 13,000 more than this time last year. The Royal College of Nursing published a survey in May 2022 showing that only 25% of shifts have the planned number of registered nurses and 83% of respondents said that there were not enough nursing staff to meet all patient needs safely and effectively on their most recent shift.
Staff on non-strike days are thinly stretched and cannot provide the level of care that they would want to, which puts huge pressure on their health and well-being. The distress that they experience is causing an increase in illness to them. Reporting on the past year, the Healthcare Safety Investigation Branch noted that the additional pressure that staff were under was causing sickness. As a new student nurse put it, “I no longer want the career as it is. The reality feels as though I must sacrifice my own health and well-being for less than satisfactory pay.”
The notion that the Government could legislate to require minimum service levels in healthcare settings, which are already committed to safe strikes, while there is a lack of investment and workforce planning—which is the reason for the action—is unfathomable. I would welcome the Government legislating to ensure appropriate staffing levels on non-strike days that are greater than the strike day cover. That would be welcomed by nurses, because it would mean more resources and more workforce planning than the health service has seen for years. It would also resolve one of the reasons why nurses are taking strike action. I have spoken about trust, as have a number of noble Lords. Accepting this amendment would go some way towards to rebuilding the trust that has been eroded, and will be eroded further by this Bill.
Amendment 13 in the name of the noble Lord, Lord Fox, seeks to make a similar point but through a different route. Along with my right reverend friend the Bishop of Manchester, who is unable to be here, I express my support for that amendment as well.

Baroness Jones of Moulsecoomb: My Lords, I support both the amendments. I have sat in my office all afternoon listening to this debate. At times, it was difficult to concentrate, simply because there was a degree of repetition. I do not blame noble Lords for that; I blame the Government—as usual. At least I got lots of old paperwork sorted, which was real progress for me.
Despite trade unions sounding the alarm on unsafe levels of staffing in public services such as hospitals for quite some time, the Government refuse to implement legislation ensuring safe levels of staffing on any day other than a day when workers have chosen to withhold their labour by going on strike.
These amendments lay bare the ridiculousness of the Bill. Under this legislation, the Government will force workers to go to work against their will, with the perverse outcome being that strike days could see services with a higher number of staff than on non-strike days. It sounds like slavery to me. Is it not slavery when you force people to work against their will?
The Government propose that this is done by employers writing out a list of names of workers who must turn up and work on a strike day. Unlike on a normal work rota, workers will not be allowed to call in sick, take parental leave, take bereavement leave or even be in hospital having had a major condition of some sort. This legislation drags the workers in and forces them into a temporary state of servitude. That goes against every single principle of common law, contract law and employment rights in this country.
I have a cunning plan which would save the Government on this issue; it would just need a few tweaks in the Bill. If the Government want to make it illegal to go below minimum staffing levels in hospitals and the ambulance service, why do we not do that 24/7 and 365 days a year but, instead of the unions getting fined, we fine the CEOs and Government Ministers? That way, if you want someone to be responsible for old people waiting eight hours for an ambulance, you put the legal responsibility on the people at the top, not at the bottom. This seems eminently sensible and much more practical. Let us have laws that apply to the people in charge rather than target the overstretched staff on the front line, who are struggling for better pay and conditions. The Government will not be able to deliver either my idea or the Bill as it stands. In fact, this Government is too incompetent to deliver a pizza, so why should they be able to deliver a Bill such as this one?
If the next Government have any sort of involvement with the Green Party, they should know that we have committed to repealing this legislation and all other anti-trade union legislation passed since the Thatcher Government—that will be quite an exercise. We can create safe, well-run public services by working together with workers and unions, not by using authoritarian laws to strong-arm them into the workplace no matter how badly their working conditions get. I hope that the Government see sense on this, but I can tell from the looks of noble Lords on the Front Bench that it is not going to work.

Baroness Noakes: My Lords, it is quite difficult to follow that speech. I do not think that anybody would want to encourage the dissipation of the Green Party in any Government, so the noble Baroness’s ideas will not go very far.
I will not talk about the NHS, which all noble Lords have spoken about so far; I will address only Amendment 13 tabled by the noble Lord, Lord Fox, but not in the context of the NHS, to which he addressed all his remarks.

Lord Fox: No, I did not.

Baroness Noakes: The amendment says:
“Levels of service set by regulations … may not exceed the lowest actual level of service … on any day”
in the previous 12 months. Let us take the example of train services. If we have the system closed because there is a lot of snow—which, I gather, there is at the moment in the north of England—the answer under the noble Lord’s amendment would be that the minimum level of service was no service. If one of the days in the previous 12 months had been a strike day, the answer might be no service. If any of the days in the previous 12 months were on a weekend or a bank holiday, which of course they would be, the answer would always be a very low level of service, which would not necessarily meet a minimum level of service for the workday population trying to get to work. I suggest to the noble Lord, Lord Fox, that his amendment is not correctly drawn.

Lord Allan of Hallam: My Lords, when this subject first came up in the Bill—the idea of talking about minimum service levels around services for 365 days a year—I initially thought that there was a cheeky and a serious aspect to it. The cheeky aspect is that it is an opportunity to make a political response to the Government’s political legislation, and to talk about service levels all year round and the failings we have seen since this party has been in power as our public services have worsened.
The serious aspect, which in a sense is more interesting and which has come out in the debate today, is around the definition of “minimum”. The noble Baroness, Lady Noakes, keeps reminding us to think about what the public see and perceive. There are two quite different ways in which to interpret “minimum”. One version is “comfortable”, when services are at a reasonable and sustainable level and are effective. In the context of healthcare, that would mean that I can see a GP when I need to, or get hold of an NHS dentist. If I am a woman who needs hormone replacement therapy, or if I have a child who needs antibiotics, I can get the drugs. When I call an ambulance, one comes in a reasonable period of time—and when I go to A&E, I can get through it and into a bed. When I need to be discharged, there is a care home for me to go to. Of all those things, I think most members of the public would say that that is a minimum. It is not the gold-standard service—it is the baseline that they expect.
Yet with the Bill and how the Government interpret “minimum”—certainly the Health Minister, who is in his place—we are talking about a safety net. There is a huge difference, because a safety net is not comfortable. The purpose of industrial action is to create discomfort; if there is no discomfort, there is no effect of the industrial action. We are talking about two different things in the same word. One is “minimum” meaning comfortable, sustainable and effective, which is what we all want from our health service, and what Amendment 18 rightly points to, and then there is a baseline safety-net version of “minimum”—it might be better described as “minimal” —which is something exceptional. We are bouncing around between those two definitions in the debate today. My noble friend Lord Fox was right to point out that, in something like the fire and rescue services, to be equipped to deal with the worst kinds of situations may be the minimum—it is certainly not minimal, and certainly not something that the legislation would aim to do, if it wanted to keep the level at one where we can deal with all eventualities.
It is important to tease these things out in these debates. We are in the House every week with the Health Minister, challenging him on all these aspects. Because he is an honest person, as has been pointed out, he readily acknowledges that there are failings and things that need to be improved, even to get to what he would see as a minimal long-term comfortable and sustainable level for the National Health Service. We have that gap, and the Bill gives us an important opportunity to tease that out.
Where does that leave us with the legislation? The postbags of Members at the other end of the building will be full every week with letters from people asking  the Government to do something about all those things that I have listed—the care homes, drug availability, and what happens when people call an ambulance. That is what people want the Government to be getting on with, yet we are spending time today and the Government’s effort—and if the Bill passes we will be asking NHS trusts up and down the country and all the other organisations to spend their valuable management time—dealing with defining those minimal levels of services, rather than getting on with the job of delivering the minimum day-to-day level of service that people in this country expect.

Lord Collins of Highbury: My Lords, this has been an excellent debate. Both noble Lords on the Cross Benches have highlighted something that we all knew would happen—that this debate would beg a question about what we can expect from our public services. What is the minimum level of service?
As we have heard, a common theme—not just in debate on this Bill—is about how people who work in the public service are genuinely concerned about its future. That is not just in the health service, by the way; there are lots of examples of people’s expectations. To be cynical, people might look at the minimum level of service set for strike days and think, “I’ll have that”, in certain circumstances. But if you speak to fire brigade members and other public sector workers, they will all give you the same message: there is a lack of investment, and they are worried about safety and their communities. It is not simply about pay and conditions—but when it is about pay and conditions, it is also about the shortage of workers.
In a commercial outfit, if you were not able to recruit, I know what you would do: put the pay up, improve the conditions, advertise it. That is not what we do in the public sector. We have seen cut after cut. I have been reading the BMA brief, and of course the Health and Social Care Committee has made the same point in terms of staffing. It describes it as “the greatest workforce crisis” facing the NHS and social care. There is persistent understaffing that poses a serious risk to staff and patient safety.
That is what the public will note when they hear these debates. They will not hear the Health Minister’s comments about life and limb; what they will hear is why, when someone has a heart attack, they have to wait four hours for an ambulance or, when they are in accident and emergency, they are on a trolley for hours and hours. That is what this debate is about, unfortunately. People want to see what the genuine priorities of this Government are. They will not be fooled by this narrative that is going to be developed about whose side you are on—they will not be fooled. They want proper public services and I think the noble Lords are absolutely right to say, if you are going to talk about minimum service levels, talk about it on non-strike days: how do you improve it? That is what people will be focused on. I hope the Ministers will listen.

Lord Callanan: My Lords, it is my pleasure to reply on this group containing Amendments 13 and 18, grouped together as they both relate to levels of service on non-strike days. The Government do not support these amendments on the basis that they add unnecessary  limitations to and delays in establishing the minimum service levels. Amendment 13 seeks to cap minimum service levels to the lowest service levels recorded for a relevant service during the 12 months before regulations are laid. It would require the Secretary of State to lay a report in both Houses before introducing regulations to evidence this condition.
Before responding generally on that amendment, let me first answer the points made by the noble Lord, Lord Fox, regarding his correspondence with my noble friend Lord Sharpe. The noble Lord is correct to point out that one option within the consultation Minimum Service Levels for Fire and Rescue Services looks at staffing levels being geared to respond to specific risks, including a minimum standard to respond to a major incident. However, this is just one of five options outlined in the consultation, and I do not consider that my noble friend has prejudged that consultation. I know that he is very willing to engage further on minimum service levels for fire and rescue services with the noble Lord if that would be helpful.
Before I turn more directly to the amendments, I will take an intervention from the noble Baroness, Lady O’Grady.

Baroness O'Grady of Upper Holloway: My Lords, just on fire and rescue services, does the Minister recognise that at the root of many of the disputes is a concern about what the level of service and staffing is on every other day of the year? Take the fire service, for example: since 2010, it has lost 12,000 posts, nearly 20%; 50 fire stations have been closed. Those firefighters really care about that. Further, and very briefly, my concern about the reference to Grenfell is because I spoke to firefighters after Grenfell. They were brave, they were dedicated and in some cases they were broken by that experience. They put their lives on the line and they saw terrible things. Can the Minister understand how insulting it is to use that as an example in an initiative to weaken what we regard as fundamental workers’ rights? If that is a measure of the Government’s sensitivity in dealing with industrial relations, I really advise the Government that they are better off staying out of it, because it will make matters so much worse.

Lord Callanan: I readily concede to the noble Baroness that many public services are under pressure, despite the record sums that we are spending on them. Of course, there are pressures on many public services; I entirely accept that. I do not know the details of the fire and rescue services consultation, but I know that the noble Lord, Lord Sharpe, is very happy to continue to engage on that issue.

Baroness Jones of Moulsecoomb: I am so sick of that line about the record amounts being spent on our public services when a lot of that money goes to private companies, which employ nurses and doctors because the Government have allowed our public services to be so understaffed. Please stop misrepresenting the situation.

Lord Callanan: The noble Baroness is getting off the debate. I am very happy to debate these points with her another time, but I think I will stick to the amendments.

Baroness Jones of Moulsecoomb: I am following you.

Lord Callanan: It is the fact that we are spending record amounts on these services.

Baroness Jones of Moulsecoomb: My Lords—

Lord Callanan: I appreciate that the noble Baroness has a different opinion on how the money is spent, and with whom. That is an unarguable fact. Perhaps we can save the debate for another occasion when we are not talking about this legislation.
Minimising what the minimum service level could be sets a significant legal restriction on the ability to achieve this balance and would likely result in the public continuing to suffer the disproportionate impacts that strikes can have. Let me again thank my noble friend Baroness Noakes for her contribution; she eloquently highlighted the potential perverse consequence of Amendment 13, and I totally agree with my noble friend.
The Government value employers, employees, trade unions and their members, and members of the public, who pay for many of these services, being able to participate in the process of setting minimum service levels through the consultations that are required by the legislation. This amendment would reduce the importance of that process, and in turn reduce the influence that these important groups have.
The noble Baroness, Lady Chakrabarti, has left us, but it remains the case that any regulations that set minimum service levels in specified services will need to be compatible with the European Convention on Human Rights, including Article 11. Should any regulations go beyond what is necessary to achieve the aims of setting minimum service levels, which resulted in a breach of the ECHR, a court would be able to grant such remedy as it considers just and appropriate, following a judicial review. Levels of staffing on non-strike days will no doubt be one of the factors that they may wish to consider. I hope that this reassures noble Lords that we will act in a way that is proportionate, and so that there are appropriate routes for stakeholders to challenge any MSLs that they believe have been set at too high a level.
Amendment 18 deals specifically with health services. It seeks to delay any implementation of minimum service levels in health services on strike days by first requiring the Government to establish appropriate staffing levels on non-strike days through primary legislation. As always, it was a pleasure for me and the noble Lord, Lord Markham, to meet yesterday with the noble Lords, Lord Patel and Lord Kakkar, to discuss the amendment. I am grateful that both noble Lords took the time to explain their concerns. I bow to their superior knowledge of and service to the healthcare system, and for their contribution to the debate which, as ever, was constructive. Many of the points raised by the noble Lord, Lord Patel, were discussed in the earlier grouping; I know that the noble Lord was listening so I will not repeat all the points made by the noble Lord, Lord Markham, but I am very happy to have further discussions with both noble Lords if they think there are outstanding issues that we have not sufficiently covered.
I would say that the responsibility for issuing work notices is with the employer, rather than the Secretary of State, precisely because individual employers know better what level of staffing is required to achieve minimum service levels. The noble Lord, Lord Collins, will be irritated but I also repeat and emphasise the point that there is no statutory duty in the Bill on an employer to issue a work notice.
As we discussed, however, strike action in some areas of health services can put lives at risk or cause serious harm to patients. In many cases, it has the potential for far-reaching consequences for members of the public who are not directly involved in the dispute. As the consultation for applying minimum service levels in the ambulance services sets out, the aim is to protect life and health, and it is only right that the implementation of minimum service levels, where required, is not unnecessarily delayed.
I will pick up the point on non-strike days. Responsibility for staffing levels, in the Government’s view, should remain with clinical and other leaders at a local level, responding to local needs and supported by guidelines and national and professional bodies and overseen and regulated in England by the Care Quality Commission. People have been unable to access work, healthcare and education and been left worrying whether an ambulance would even be there when they needed one. Businesses have also been severely impacted. It is the Government’s view that these amendments would only delay or disrupt our ability to act on the disproportionate impacts that strikes can have on the public. Therefore, I hope the noble Lord will be able to withdraw Amendment 13.

Lord Fox: My Lords, first, I thank the Minister for his response on fire and rescue, and I suggest to the noble Baroness, Lady O’Grady, that she and I arrange to meet the noble Lord, Lord Sharpe, to take this further. She better articulated the points that I tried to make on Second Reading on the inappropriate choice of these examples in the consultation. I continue to believe that they are inappropriate, and she confirmed that in my mind.
I am always pleased to take drafting notes from the noble Baroness, Lady Noakes. She has infinitely more experience in parliamentary drafting, and if she could perhaps jot some amendments to my amendment, I would be happy to use those on Report. I was, however, delighted that that was the point she decided to upbraid me on; she did not upbraid me on any of the actual arguments I made. I will notch that as an argument won if all she can call me on is my parliamentary draftsmanship.
I move on to the substantive. It is awful when someone references their own Second Reading speech, which I am now going to do. I welcomed the Government introducing the concept of service levels, because the Government have brought this on themselves. They have opened this Pandora’s box, so they cannot be surprised that your Lordships are now pushing back on what the day-to-day, non-strike service levels in all the services mentioned in the Bill will be. It is the Government’s doing that we are now having this debate.  I am afraid I cannot speak without having consulted the noble Lords opposite, but I did not think the Minister’s response on non-strike-day service was even attempted, never mind adequate. There is more work to do in this area, and I hope we can debate this further.
The point that the noble Lord, Lord Kakkar, made—which had been brought up by my noble friend and the noble Baroness, Lady Chakrabarti—about legal jeopardy and the Government or employers opening themselves up to legal redress from potential patients, or other people in other services, is very clear. Again, I do not think that the Government have addressed that issue properly. As soon as there are marks in the sand, there will be lawyers able to exploit those marks on behalf of their clients. We already know how much it is costing the National Health Service, but it will cost the National Health Service a great deal more. It is already costing the National Health Service billions of pounds.
It is clear to me that the Minister did not even address, really, the key issue of this group, which is where the minimum service level approaches or indeed reaches 100% of the workforce in a particular service. With respect to the noble Baroness, Lady Noakes, I made the point with respect to the fire service and signal services as well. It is clear to me, and the Minister has confirmed, that the consultation level  could result in 100% of a workforce being required in a work notice, in name, to come to work to meet the minimum service level as delivered with very little consultation and virtually no parliamentary approval. That is, to all intents and purposes, banning strikes. That said—and I am sure we will come back to it—I beg leave to withdraw Amendment 13.
Amendment 13 withdrawn.
House resumed.
House adjourned at 6.50 pm.

Correction

Public Order Bill
 - Returned from the Commons

The Bill was returned from the Commons with amendments and reasons. It was ordered that the Commons amendments and reasons be printed.